Stuckhardt v New York City Bd. of Educ.
Annotate this CaseDecided on October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-534 Q C. NO. 2009-534 Q C
Shelley Stuckhardt, Appellant,
against
New York City Board of Education, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J.
Dufficy, J.), entered December 22, 2008. The order denied plaintiff's motion for a joint trial of the
instant action with another action pending in the Civil Court, Kings County, and for a change of venue
of the instant action to Kings County.
ORDERED that the order is affirmed without costs.
The instant personal injury action (Action No. 1) was commenced in the Supreme Court, Queens County, and is based upon an accident which occurred on October 9, 2002 when plaintiff Shelley Stuckhardt, a public school teacher, allegedly tripped and fell on defective carpeting in a public school located in Queens County. In June 2008, the action was transferred to the Civil Court, Queens County, pursuant to CPLR 325 (d).
In June 2007, the New York City Department of Education commenced an action against Ms. Stuckhardt (Action No. 2) in the Civil Court, Kings County, seeking to recover $19,360.24 from Ms. Stuckhardt, based on alleged salary overpayments made to her between September 30, 2003 and April 30, 2004, due to Ms. Stuckhardt's "leave from employment on February 1, 2004."
Thereafter, plaintiff moved in Action No. 1 for a joint trial of the actions and sought to change the venue of Action No. 1 from the Civil Court, Queens County, to the Civil Court, Kings County. The Civil Court denied the motion in its entirety, finding that there was no basis for joinder because there were no common questions of law or fact, and that the issues presented in [*2]the two actions were separate and distinct. The court further found that since Action No. 1 was brought against a City department, it was appropriate to retain venue in Queens County, which was "the county within the city in which the cause of action arose" (see CPLR 504 [3]).
A motion seeking a joint trial rests in the sound discretion of the motion court
(e.g. Glussi v Fortune Brands, 276 AD2d 586 [2000]; Ryckman v
Schlessinger-Levi-Polatsch-Tydings, 225 AD2d 603 [1996]) and, when actions involve "a
common question of law or fact" (CPLR 602 [a]), a joint trial is warranted unless the opposing party
demonstrates prejudice to a substantial right (see Ryckman, 225 AD2d 603; see also
Zimmerman v Mansell, 184 AD2d 1084 [1992]). The party seeking a joint trial bears the burden
of specifying the commonality of issues, while the burden of demonstrating prejudice is on the opposing
party (see RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776 [2006]; Beerman v
Morhaim, 17 AD3d 302 [2005]).
The Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff's motion seeking a joint trial since plaintiff failed to meet her initial burden of specifying any significant common questions of law or fact (see 197 Merrick Rd. Corp. v 185 Merrick Rd. Assoc. Corp., 152 AD2d 551 [1989]). The mere fact that plaintiff asserted defendant's negligence as the basis for her affirmative defense in Action No. 2 does not mean that the two actions possess a commonality of issues of law (see RCN Constr. Corp., 34 AD3d 776; Beerman, 17 AD3d 302; Heydt Contr. Corp. v Tishman Constr. Corp. of NY, 163 AD2d 196 [1990]; see also Screen Gems-Columbia Music v Hansen Publ., 42 AD2d 897 [1973], affd 35 NY2d 885 [1974]). Plaintiff also made no showing that the proof with respect to each action overlapped, and that there was a sufficient identity of facts to merit a joint trial (see e.g. RCN Constr. Corp., 34 AD3d 776; Beerman, 17 AD3d 302; C.K.S. Ice Cream Co. v Frusen Gladje Franchise, 172 AD2d 206 [1991]; JM Mech. Corp. v Washington Fed. Sav. & Loan Assn., 80 AD2d 884 [1981]). Likewise, the branch of plaintiff's motion seeking a change of venue of the instant action was properly denied since the cause of action arose in Queens County (see CPLR 504 [3]).
Accordingly, the order is affirmed.
Pesce, P.J., and Rios, J., concur.
Golia, J., dissents in part and concurs in part in a separate memorandum.
Golia, J., dissents in part and concurs in part and votes to modify the order by providing that the branch of plaintiff's motion seeking a joint trial is granted and by further providing that the branch of plaintiff's motion seeking a change of venue is granted to the extent of directing that the joint trial be held in Queens County, in the following memorandum:
Contrary to the holding of the majority, I conclude that the branch of plaintiff's motion seeking a joint trial met the threshold requirement of CPLR 602, by establishing that the two actions shared a common question of law or fact.
It is clear from plaintiff's papers that the issue of her alleged injuries is common to both actions sought to be jointly tried. I note that defendant does not contradict this assertion, but merely opposes the motion on the ground that the instant matter sounds in tort while the other action sounds in contract.
While I agree with the majority that generally the question of whether to grant a motion for a joint trial rests in the sound discretion of the motion court, I believe this case is governed by the Appellate Division, First Department's assertion that "there is a preference for consolidation in the interest of judicial economy" (Geneva Temps., Inc. v New World Communities, Inc., 24 [*3]AD3d 332, 334 [2005]). In the two actions at issue, the contract action for recoupment of wages alleged to be "improperly" paid to Ms. Stuckhardt would have to abide the resolution of Ms. Stuckhardt's tort action irrespective of whether there were common questions of law or fact. Here, the two-sentence endorsed complaint of the City of New York, the plaintiff in the Kings County action, offers little information concerning the relationship between the defendant and the plaintiff or the purpose of the lawsuit.
Plaintiff's motion papers indicate that the underlying issue is common to both actions sought to be joined, both of which arose from injuries caused as a result of the City's alleged negligence. Plaintiff further alleges in her papers that her injuries are directly related to her loss of wages as a teacher for the New York City Board of Education, which injuries resulted in her absences.
Based on the common issues presented, as well as in the interest of judicial economy, I find that
these actions should be tried jointly, and I would direct that venue be had in Queens County.
Decision Date: October 01, 2010
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