Mulvaney v County of Westchester

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Mulvaney v County of Westchester 2018 NY Slip Op 34354(U) December 12, 2018 Supreme Court, Westchester County Docket Number: Index No. 67063/2016 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:00 AM NYSCEF DOC. NO. 98 INDEX NO. 67063/2016 RECEIVED NYSCEF: 12/12/2018 To commence statutory To commence the the statutory time for appeals of right time for appeals as of right (CPLR 5513[aJ), (CPLR 5513[a]). you you are are advised copy advised to selVe seive a copy order, with with notice notice of this this order, of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE NEW YORK SUPREME STATE OF NEW YORK WESTCHESTER COUNTY WESTCHESTER COUNTY PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: ----------------------------------------------------------------------x ------------------------------------------------------------------------------J( DEVAN of the Estate of DEVAN MULVANEY, MULVANEY, as Executor EJ(ecutor of Estate of DONALD MULVANEY, MULVANEY, deceased, EJ(ecutor of DONALD deceased, as Executor of DECISION AND ORDER DECISION AND ORDER . Estate of LEDELL LEDELL MULVANEY, MULVANEY, deceased, the Estate deceased, IndeJ( No: 67063/2016 67063/2016 and as Administrator Estate of Index the Estate Administrator of the KATHERINE MULVANEY, MULVANEY, deceased, KATHERINE deceased, Seq#4 Seq#4 Plaintiffs, Plaintiffs, -against-againstCOUNTY OF WESTCHESTER WESTCHESTER and COUNTY TOWN OF YORKTOWN, TOWN YORKTOWN, Defendants Defendants --------------------------------------------------------------------x ------------------------------------------------------------------------------J( Town of Town of Yorktown, Yorktown, Third-Party Plaintiff, Plaintiff, Third-Party -against-againstEmpress Ambulance Service, Inc., Inc" Empress Ambulance Service, Third-Party Defendant Third-Party Defendant -----------------------------------------------------------x ------------------------------------------------------------------------------J( The were reviewed the plaintiff's seeking an order The following following papers papers were reviewed on the plaintiff's motion motion seeking order pursuant to CPLR CPLR 602(a) 602(a) consolidating consolidating this action another related related action: pursuant action with another action: Notice of Motion/Affirmation/EJ(hibit A of Motion/Affirmation/Exhibit Notice 1-3 Based foregoing papers Based on the foregoing papers the plaintiff's plaintiff's motion motion is granted. granted. Factual and Procedural Procedural Background Background Factual The plaintiff plaintiff commenced commenced this action action on November November 14, 2016, 2016, to recover recover for for personal personal The of his father, father, mother injuries and the wrongful deaths of mother and sister, sister, Donald, Donald, Ledell Ledell and injuries wrongful deaths [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:00 AM NYSCEF DOC. NO. 98 INDEX NO. 67063/2016 RECEIVED NYSCEF: 12/12/2018 Katherine Katherine Mulvaney, Mulvaney, as a result result of a vehicular vehicular accident accident which which occurred occurred on August August 15, 2015. The The plaintiff alleges that that the Mulvaneys' was traveling 2015. plaintiff alleges Mulvaneys' vehicle vehicle was traveling southbound southbound on the Taconic when a BMW Taconic State State Parkway, Parkway, when BMW SUV SUV owned owned and operated operated by Nerim Nerim Sinanovic Sinanovic traveling northbound the center embankment, going traveling northbound on the Taconic Taconic crashed crashed into the center embankment, going airborne airborne and striking the Mulvaneys' Mulvaneys' vehicle. vehicle. striking the Prior to the commencement, the the plaintiff plaintiff served served the defendants defendants County County of the commencement, Prior Westchester (the "County") "County") and Town Yorktown (the "Town") "Town") with Notices of Claim, Claim, Westchester Town of Yorktown with Notices pursuant to New York General Municipal Municipal Law § S 50-e 50-e and the the Town Town conducted conducted a 50-h York General pursuant hearing of Devan Mulvaney Mulvaney on August 2016. The County did not conduct conduct a 50-h of Devan August 24, 2016. The County hearing hearing. hearing. The Town filed filed a third-party complaint on November November 17, 2017, 2017, The Town third-party summons summons and complaint against Empress Empress Ambulance Ambulance Service, Service, Inc. The The plaintiff plaintiff also also filed three three additional actions, against additional actions, which were were joined joined for for purposes discovery and trial by a Stipulation dated two of which purposes of discovery Stipulation to Join dated February 22, 2018 2018 and then then subsequently subsequently discontinued discontinued by Stipulations Stipulations of Discontinuance Discontinuance February dated April The plaintiff plaintiff commenced commenced the the third action on dated April 27, 2018 2018 and April April 30, 2018. 2018. The third action August now seeks seeks to consolidate consolidate it with with this action action pursuant pursuant to CPLR CPLR 602(a) 602(a) August 15, 2018 2018 and now amend the caption caption to reflect reflect the consolidation. consolidation. There There is no opposition opposition to the motion. motion. and to amend DISCUSSION DISCUSSION "Where fact exist, joint "Where common common questions questions of law or fact exist, a motion motion to consolidate consolidate or for for a joint trial pursuant to CPLR CPLR 602(a) 602(a) should should be granted granted absent prejudice to a of prejudice trial pursuant absent a showing showing of substantial AD3d substantial right by the party party opposing opposing the motion" motion" (see Perini Perini Corp. v WDF, WOF, Inc., 33 AD3d Dept 2006]). 2006]). Here, both actions actions involve involve common common questions questions of fact 606 [2d Dept of law and fact 605, 606 consolidated trial would avoid unnecessary unnecessary duplication proceedings, save of proceedings, save and a consolidated would avoid duplication of 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:00 AM NYSCEF DOC. NO. 98 INDEX NO. 67063/2016 RECEIVED NYSCEF: 12/12/2018 unnecessary costs costs and expenses expenses and prevent prevent the injustice which result from unnecessary the injustice which would would result from divergent decisions decisions based based on the same facts Gutman v Klein, 26 AD 3d 464,465 464, 465 [2d divergent the same facts (see Gutman AD3d Dept There was was no opposition joint discovery Dept 2006]) 2006]) There opposition and therefore, therefore, no showing showing that that joint discovery and/or andlor would prejudice prejudice a substantial substantial right of the other other parties. parties. a joint joint trial trial would Accordingly, it is Accordingly, ORDERED that motion is granted granted and it is further further ORDERED that the the motion ORDERED that, Index Index No.62649/2018 NO.62649/2018 shall be consolidated consolidated into this action (Index (Index ORDERED this action No. 67063/2016. 67063/2016. The The caption caption shall appear appear as follows: follows: ------------------------------------------------------------------------------x ----------------------------------------------------------x DEVAN MULVANEY, MULVANEY, as Executor Executor of of the Estate of DEVAN the Estate DONALD MULVANEY, MULVANEY, deceased, deceased, as Executor Executor of. of. DONALD Estate of LEDELL LEDELL MULVANEY, MULVANEY, deceased, deceased, the Estate and as Administrator Administrator of of the the Estate Estate of of Index No: 67063/2016 67063/2016 Index KATHERINE MULVANEY, MULVANEY, deceased, deceased, KATHERINE Plaintiffs, Plaintiffs, -against-againstCOUNTY OF WESTCHESTER, TOWN OF YORKTOWN, YORKTOWN, COUNTY WESTCHESTER.TOWN YORKTOWN THE YORKTOWN HEIGHTS HEIGHTS ENGINE ENGINE COMPANY COMPANY #1, THE MILLWOOD FIRE FIRE COMPANY COMPANY NUMBER NUMBER ONE, INC., MILLWOOD MOHEGAN VOLUNTEER FIRE ASSOCIATION, INC., MOHEGAN VOLUNTEER FIRE ASSOCIATION, EMPRESS AMBULANCE AMBULANCE SERVICE, SERVICE, INC., MOUNT MOUNT EMPRESS KISCO VOLUNTEER CORPS, INC., KISCO VOLUNTEER AMBULANCE AMBULANCE CORPS, OSSINING AMBULANCE CORPS, OSSINING VOLUNTEER VOLUNTEER AMBULANCE CORPS, INCORPORATED, PEEKSKILL PEEKSKILL COMMUNITY COMMUNITY INCORPORATED, VOLUNTEER CORP., and SOMERS SOMERS VOLUNTEER AMBULANCE AMBULANCE CORP., VOLUNTEER FIRE DEPARTMENT DEPARTMENT INC. VOLUNTEER FIRE Defendants Defendants -----------------------------------------------------------x ------------------------------------------------------------------------------x Town Town of of Yorktown, Yorktown, Third-Party Plaintiff, Plaintiff, Third-Party -against-againstEmpress Ambulance Empress Ambulance Service, Service, Inc., Third-Party Defendant Third-Party Defendant ..------------------------------------------------------------------------------x ------------------------------------------------------------------------------x 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:00 AM NYSCEF DOC. NO. 98 INDEX NO. 67063/2016 RECEIVED NYSCEF: 12/12/2018 The foregoing shall shall constitute constitute the decision and order order of of the the Court. Court. The foregoing the decision Dated: White Plains, Dated: White Plains, New New York York December rlr 12., 2018 2018 December ~J.~ SAM D. WALKER, WALKER, J.S.C. HON. SAM J.S.C. [* 4] 4 of 4

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