Anthony M. Palumbo, D.C. v Tristate Consumer Co.

[*1] Anthony M. Palumbo, D.C. v Tristate Consumer Co. 2010 NY Slip Op 50443(U) [26 Misc 3d 144(A)] Decided on March 10, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-1839 Q C.

Anthony M. Palumbo, D.C., P.C. assignee of Marc Taly, Respondent,

against

Tristate Consumer Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 10, 2008. The order denied defendant's motion pursuant to CPLR 602 (a) to consolidate, for a joint trial, the instant action, an action entitled Joseph Lazmiz, D.C. a/a/o Marc Taly v Tri-State Consumer Co., pending in the same court under index No. 82107/08 and an action entitled Boulevard Surgical Center, A.C. a/a/o Marc Taly v Tri-State Consumer Insurance Co., pending in the Civil Court of the City of New York, New York County, under index No. 33825/08.

ORDERED that the order is reversed without costs, defendant's motion is granted to the extent of directing a joint trial of the three actions in Queens County, and the Clerk of the Civil Court of the City of New York, New York County, shall forthwith deliver to the Clerk of the Civil Court of the City of New York, Queens County, all papers and certified copies of all minutes and entries in the action entitled Boulevard Surgical Center, A.C. a/a/o Marc Taly v Tri-State Consumer Insurance Co., under index No. 33825/08.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits for services rendered to its assignor on March 26, 2008 and March 27, 2008 at Boulevard Surgical Center. Defendant has demonstrated that two other providers have commenced two separate actions for the same services rendered on the same date at the same location. "Where common issues of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Perini Corp. v WDF, Inc., 33 AD3d 605, 606 [2006]). Here, the interests of justice and judicial economy would be served by a joint trial of the actions since defendant intends to defend all three actions on the ground that the services rendered were not medically necessary. Moreover, the papers submitted in opposition to the motion failed to establish that a joint trial [*2]would prejudice a substantial right (see Mas-Edwards v Ultimate Services, Inc., 45 AD3d 540 [2007]). Venue for the joint trial should be placed in Queens County since the first action was commenced in that county (see id.).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010