Nelson v Walt Whitman Mall, LLC
Annotate this CaseDecided on March 16, 2015
Supreme Court, Nassau County
David Nelson, as Administrator For the Estate of STEVEN C. NELSON, Plaintiff,
against
Walt Whitman Mall, LLC, SIMON PROPERTY GROUP, INC. and CITYWIDE SEWER & DRAIN SERVICE CORPORATION, Defendants.
004419/14
Wilson Elser, et al
Attorneys for Defendant, City-Wide
150 E. 42nd Street
NY, NY 10017
(212) 490-300
Morelli Alters Ratner, LLP
Attorneys for Plaintiff, Nelson
777 Third Avenue
NY, NY 10017
(212) 751-9800
Cozen O'Connor
Attorneys For Defendants, Walt Whitman & Simon
45 Broadway
NY, NY 10006
(212) 509-9400
Davis & Ferber, LLP
Attorneys For Plaintiffs in Suffolk Action
1345 Motor Parkway
Islandia, NY 11749
(631) 543-2900
Randy Sue Marber, J.
Upon the foregoing papers, the motion by the Defendant, CITYWIDE SEWER & DRAIN SERVICE CORPORATION (hereinafter "CITYWIDE"), seeking an order "consolidating"[FN1] this action with an action pending in the Supreme Court, Suffolk County, entitled CHRISTOPER FEZZA, MICHAEL ROSEN and THERESA ANN WISSERT v. WALT WHITMAN MALL, LLC, SIMON PROPERTY GROUP, INC. and CITYWIDE SEWER & DRAIN SERVICE CORPORATION, docketed under Index No.: 20584/14 (hereinafter "The Suffolk Action"), for purposes of joint discovery and joint trial, pursuant to CPLR § 602, and to transfer the Suffolk Action to Nassau County, is decided as provided herein.
The Plaintiff commenced the instant action by the filing of a Summons and Verified Complaint in the office of the Nassau County Clerk on May 5, 2014. (Exhibit "A") The Suffolk Action was commenced by the filing of a Summons and Complaint on or about October 17, 2014 and an Amended Verified Complaint dated December 5, 2014. Issue has been joined in both actions. (Exhibit "C")
This action and the Suffolk Action arise from an incident which occurred on February 22, 2014 at the Legal Sea Foods restaurant located at the Walt Whitman Mall in Huntington, New York, which is in Suffolk County. The Plaintiffs in both actions allege that due to the negligence of the Defendants, the Plaintiffs were exposed to carbon monoxide causing them injuries, and in the case of the Plaintiff's decedent in this action, his death.
The moving Defendant's counsel argues that from a review of the pleadings in this action as well as the Suffolk Action, it is readily apparent that the claims in each case arose from the same occurrence. Counsel argues that "consolidation" is appropriate in that both cases also have common issues of law or fact. He indicates that it is anticipated that the same fact and expert witnesses will testify in each case, that the two cases have had limited discovery and that in the interest of judicial economy, "consolidating" the actions for trial would eliminate the possibility of inconsistent verdicts. Although the Defendants moved to consolidate the actions, the more appropriate method of achieving that purpose is a joint trial, particularly since the two actions involve different plaintiffs. (Mas-Edwards v. Ultimate Servs., Inc., 45 AD3d 540 [2d Dept. 2007]; citing Perini Corp. v. WDF, Inc., 33 AD3d 605 [2d Dept. 2006])
The Plaintiff in the instant action has not submitted any papers supporting or opposing this motion.
Counsel for the Defendants, WALT WHITMAN MALL, LLC, SIMON PROPERTY GROUP, INC. (hereinafter "SIMON") submits an Affirmation in Reply supporting the motion by the Defendant, Citywide.
Although counsel for the Plaintiffs in the Suffolk Action acknowledges that it might be in the interests of judicial economy to consolidate the two cases, he contends that "if the matters are consolidated, they should be for joint trial, but only as to liability issues". Additionally, the Plaintiffs' counsel in the Suffolk Action opposes the transfer of the Suffolk Action to Nassau County. He argues that the incident occurred in Suffolk County and that the Suffolk County Police and Huntington Fire Marshal and other witnesses will be inconvenienced if the litigation is in Nassau County. Furthermore, counsel for the Suffolk Action Plaintiffs contends that a joint trial [*2]would not be possible since this action is a wrongful death action which requires a unified trial thereby prejudicing his clients and that the issues and applicable legal principles are so dissimilar that a joint trial would be "unwieldy".
In order to join an action pending in a different court with an action pending in this Court, pursuant to the requirements of CPLR § 602, there must be a common question of law or fact. The record before this Court indicates that this action and the Suffolk Action arise from the same incident and that the Plaintiffs in both actions will be proceeding on the same theory of negligence. There are clearly common questions of law and fact here.
No substantial prejudice has been demonstrated by any of the non-moving parties, and where there is no showing of substantial prejudice, an action may be consolidated or a joint trial ordered. See Marshall v. Monegro Investors, 132 AD2d 651, 653 (2d Dept. 1987). In the present action, the moving Defendants have met their burden with regard to the above criteria. However, the actions shall only be joined for the purpose of joint discovery and a joint trial on the issue of liability.
The fact that the instant action involves a claim for wrongful death does not preclude it from proceeding in a bifurcated trial. "As a general rule, questions of liability and damages in an action sounding in negligence represent distinct and severable issues which should be tried and determined separately." (Louise B.G. v. New York City Bd. Of Educ., 143 AD2d 728 [2d Dept. 1988]) Furthermore, "in order for the rule not to apply, the party opposing bifurcation must show that the nature of the injuries has an important bearing on the issue of liability." (Martinez v. Town of Babylon, 191 AD2d 483 [2d Dept. 1992]) Lastly, the Defendants' unsubstantiated claim that a joint trial would be "unwieldy" was not sufficient to satisfy the burden of demonstrating prejudice to a substantial right. (Alizio v. Perpignano, 78 AD3d 1087 [2d Dept. 2010])
When a joint trial of two action are ordered pursuant to CPLR § 602, venue will generally be placed in the county where the first action was commenced, unless special circumstances are present. (Clark v. Clark, 93 AD3d 812 [2d Dept. 2012]; Gomez v. Jersey Coast Egg Producers, 186 AD2d 629 [2d Dept. 1992]; Brown v. Cope Bestway Exp., Inc., 99 AD3d 746 [2d Dept. 2012]). The placement of venue rests in the sound discretion of the motion Court. (Id.)
In this action, as well as the Suffolk Action, special circumstances have been established. Specifically, the incident occurred in Suffolk County, the Plaintiffs, the Suffolk County Police and Huntington Fire Marshal and other witnesses are from Suffolk County. It appears that they will be inconvenienced if the trial is in Nassau County. In the exercise of the Court's discretion, due to the special circumstances that exist which make Suffolk County the appropriate venue, and inasmuch as no party has come forward with any evidence of any prejudice should the trial take place in Suffolk County, the joined actions should be tried in Suffolk County. (Mas-Edwards v. Ultimate Servs., Inc., 45 AD3d 540 [2d Dept. 2007])
Accordingly, it is hereby,
ORDERED, that the Defendant's motion, seeking an order pursuant to CPLR § 602, for a joint trial and joint discovery, is GRANTED; and it is further
ORDERED, that the Clerk of the Supreme Court, County of Nassau, is directed to physically transfer the file in this action, under Index No. 004419/14, to the County Clerk, County of Suffolk; and it is further
ORDERED, that the County Clerk, Suffolk County shall assign an index number to this matter upon receipt of the file.
This decision constitutes the order of the Court.
DATED:Mineola, New York
March 16, 2015 ________________________________
Hon. Randy Sue Marber, J.S.C. Footnotes
Footnote 1:CPLR § 602 provides for either the joinder or the consolidation of actions. There is no such term as "consolidation for joint trial".
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