Vega v City of New York

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Vega v City of New York 2013 NY Slip Op 30172(U) January 23, 2013 Supreme Court, New York County Docket Number: 114966/09 Judge: Kathryn E. Freed Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ANNED ON 113012013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Justice Index Number : 114966/200< VEGA, RENEE * vs. C&L? CITY OF NEW YORK SEQUENCE NUMBER : 001 - INDEX NO. i3i MOTION DATE MOTION SEQ. NO. CONSOLIDATION/JOINT TRIAL -, were read on this motion to/for Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - Exhibits The following papers, numbered 1 to I Ws). I No(d. I NOW Replying Affidavits Upon the foregoing papers, it is ordered that this motion i w u F 2 ,J.S.C. ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION IS: 17GRANTED I7DENIED DISPOSITION I. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER DO NOT POST 0GRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] C L RENEE VEGA, DECI SION/ORDER Index No.: 114966/2009 Seq. No.: 001 Plaintiff, -againstTHE CITY OF NEW YORR, PRESENT: Hon. Kathrvn E. Freed J.S.C. Defendants, RECITATION, AS REQUIRED BY CPLR 522 19(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. _- PAPERS F1.LE.D ...... NOTICE OF MOTION AND AFFIDAVITS ANNEXED ............... ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ......... .ANSWERING AFFIDAVITS.. ....................................................... J.&N REPLYING AFFIDAVITS.. ............................................................... EXHIBITS. .................................................................................... STIPULATIONS............................................................ OTHER................................................................................................ ~ ' C~U ..................... 1' 3 0 2015,..,.~...... ..................... Nwyow. ........ 3-4 I I C L E R W wj m j UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Plaintiff seeks an Order of consolidation pursuant to CPLRg 602(a), consolidating Action #1 and Action #2, on the grounds that they arise out of the same occurrence,and they share common questions of law and fact. No opposition has been submitted by defendant. After a review of the instant motion, all relevant statutes and caselaw, the Court grants the motion. Factual and procedural background: Action#l was commenced against defendant City on October 23,2009. Action #1 culminated 1 [* 3] from plaintiffs desire to recover damages for personal injuries she sustained as she was roller blading on Columbia Street on April 27, 2009, wherein she tripped and fell upon a negligently maintained portion ofthe street. Action #2 was commenced against Con Edison Co. ofN.Y.., Inc., and Consolidated Edison Company on April 25,2012. Action #2 seeks to recover damages for the same accident as Action # 1. During the discovery phase of Action #1, plaintiff discovered that Con Ed had a permit to perform construction on the Street at of about the location of the alleged defect on Columbia Street that allegedly caused plaintiff to trip and fall. Now, plaintiff argues that the two actions warrant consolidation because they arise out of a common question of faact-plaintiff s trip and fall due to a defect on Columbia Street, Plaintiff also argues that consolidation would not cause defendant any prejudice and is necessary to avoid a multiplicity of lawsuits that would burden the court. Conclusions of law: CPLRg 602(a) permits the consolidation of actions which involve common questions of fact; and generally vests discretion with the trial judge to determine whether to order consolidation. Consolidationis appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts..... ( Chinatown Apts.. Inc. v. New York City Tr. Auth., 100 A.D.2d 824 [lstDept. 19841 ). Indeed, joint trials are favored in that they will foster judicial economy, quicken the disposition of cases ( Matter of City of Rochester v. Levin, 57 A.D.2d 700 [4 hDept. 19771 ), and potentially encourage settlements ( In Re New York Citv Asbestos Litigation,l88 A.D.2d 2 14 [1 * Dept. 19931, lvgranted 81 N.Y.2d 707 [1993] ). 2 [* 4] Where consolidation is sought, the party opposing it bears the burden of demonstrating prejudice to a substantial right (see American Home Mtw. Servicinv. Inc. v, Sharrocks, 92 A.D.3d 620, 622 [2d Dept. 20121; Viafax Corp. v. Citicom Leasing, Inc., 54 A.D.3d 846, 950 [2d Dept. 20081 ). While consolidation is favored where it advances judicial economy, it should not be ordered where the issues raised in the two actions are essentially different, or there is an insufficient identity of the factual or legal issues involved in the actions ( see 1 N.Y Jur 2d, Actions 6 62 ). Moreover, e the prejudice inherent in delay may also militate against consolidation, when the actions sought to be consolidated are at markedly different stages ( see 1 N.Y. Jur 2d, Actions 9 64; see also Ahmed v. C.D. Kobsons. Inc., 73 A.D.3d 440,441 [lstDept. 20101 ). In the case at bar, the Court finds that consolidation of Action #1 and Action #2 would be appropriate and advantageous, given the fact that they involve the same set of facts and probable witnesses, and are clearly not at markedly different stages, Therefore, in accordance with the foregoing, it is hereby ORDERED that plaintiffs motion is granted and the above-captioned action is consolidated in this Court with Renee Vegavs. Con Edison Co. Of N.Y,, Inc., and Consolidated Edison Company under Index No. 0 I fs kdl $gnd the consolidated action shall bear the following caption: RENEE VEGA, Plaintiff, -against- THE CITY OF NEW YO=, CON EDISON CO. OF N.Y., INC., and CONSOLIDATED EDISON COMPANY, Defendants. [* 5] Index No. 114966/09 And it is further ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further ORDERED that upon service on the Clerk of the Court of a copy of this order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark hisher records to reflect the consolidation, and it is.further ORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office ( Room 158), who is hereby directed to mark the court's records to reflect the consolidation. ENTER: DATED: January 23,2013 JAN 2 3 2UD FILED JAN 3 0 2013 . NEW YORK 4 1 1 I

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