Reverse Mtge. Solutions, Inc. v Muldrow

[*1] Reverse Mtge. Solutions, Inc. v Muldrow 2018 NY Slip Op 51532(U) Decided on October 31, 2018 Supreme Court, Queens County Modica, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2018
Supreme Court, Queens County

Reverse Mortgage Solutions, Inc., Plaintiff,

against

Gwendolyn Muldrow a/k/a GWENDOLYN STALEY as ADMINISTRATRIX of the ESTATE OF SUSAN WASHINGTON, et al., Defendants.



GWENDOLYN MULDROW, Individually and as ADMINISTRATOR of the ESTATE OF SUSAN WASHINGTON,Plaintiff,

against

KIMBERLY MCDERMOTT, GENWORTH FINANCIAL HOME EQUITY ACCESS, INC. and REVERSE MORTGAGE SOLUTIONS, INC.Defendants.



704464/2013



For the Plaintiff in Action Number 1: Ras Boriskin, LLC, by Tracy Starasoler and William Know, Esqs., 900 Merchants Concourse, suite 310, Westbury, New York, NY 11590

For Defendant Gwendolyn Muldrow in Action No. 1 and Plaintiff in Action No. 2: Leavitt & Kerson, by Paul Eugene Kerson, Esq., 118-35 Queens Blvd., 12th floor, Forest Hills, New York 11375
Salvatore J. Modica, J.

As an initial matter, plaintiff has withdrawn its main motion. The Court is thus left with [*2]the cross motion. The defendants in Action number 1, the case before the undersigned, have cross moved for consolidation with the action under Action No. 2, listed above. Defendants also seek to make a substitution of a representative for the late Gwendolyn Muldrow. See Mr. Kerson's affirmation for the cross motion. Plaintiff does not oppose the cross motion.

The Court, despite the eagerness of all parties to "consolidate" the aforecaptioned two actions, notes that consolidation is not the appropriate remedy where one party is a plaintiff and is also a defendant in the second action. The Court thus grants the branch of the motion seeking consolidation only to the extent of ordering a joint trial of the two actions. In an excellent, well-written opinion, Justice Charles Markey (ret.), in Smellie v. Santiago, 2012 WL 6634553, 2012 NY Slip Op. 52340(U) (Sup. Ct. Queens County 2012), explained: "[T]he Court notes that, in the present case, consolidation is not appropriate. Where one particular individual or entity will be both a plaintiff in one action and a defendant in another action, consolidation is not appropriate. [citing several cases]. Instead, a joint trial is the proper relief where a particular individual or entity will be both a plaintiff in one action and a defendant in another action." Smellie v. Santiago, 2012 WL 6634553, supra, at **2-3.

The parties also ask, in a second branch of the defendants' cross motion, that the Court, in both actions, change the caption from "GWENDOLYN MULDROW a/k/a GWENDOLYN STALEY as ADMINISTRATRIX of the ESTATE OF SUSAN WASHINGTON," to "Latiesha Staley as Administrator of the Estate of Susan Washington." This second branch for relief cannot be granted in full. The substitution of the parties for the deceased Gwendolyn Muldrow is appropriate only in Action number 1 that is before the undersigned under Index Number 704464/2013. Since the second action is currently before another judge of this Court, and the fact that the Court has decided herein that full consolidation is not appropriate, the Court will effect the change of caption only under Index Number 704464/2013. In sofar as Actuion No. 2 is concerned, under Index Number 9925/2012, the motion to effect a substitution of parties is denied without prejudice to making a separate motion under that Index Number (9925/12). In all likelihood, once the Clerk has entered this order of a joint trial, the lawsuit under Index Number 9925/2012, Action No. 2, will be re-assigned to the undersigned.

The Clerk is thus instructed, in sum, in addition to ordering a joint trial, to change the caption in Action No. 1, to

X

REVERSE MORTGAGE SOLUTIONS, INC.,Action Number 1

Plaintiff,Index No. 704464/2013

against —

LATIESHA STALEY as ADMINISTRATOR OF THE

ESTATE OF SUSAN WASHINGTON, et al.,

Defendants.

X

The Court hereby ORDERS as follows:

The above-captioned two actions shall be tried jointly in this Court. Separate Index Numbers, Requests for Judicial intervention, and Notes of Issue shall be filed for each action.

Each party shall be entitled to enter a separate Bill of Costs, if costs are allowed.

The trial shall proceed in the following order: Index No. 9925/2012, followed by 704464/2013. The actions combined for joint trial are reflected in the following caption:

X

REVERSE MORTGAGE SOLUTIONS, INC.,Action Number 1

Plaintiff,Index No. 704464/2013

against —

LATIESHA STALEY as ADMINISTRATOR OF THE

ESTATE OF SUSAN WASHINGTON, et al.,

Defendants.

X

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

X

GWENDOLYN MULDROW, Individually and asAction Number 2

ADMINISTRATOR of the ESTATE

OF SUSAN WASHINGTON,Index No. 9925/2012

Plaintiff,

against —

KIMBERLY MCDERMOTT, GENWORTH FINANCIAL

HOME EQUITY ACCESS, INC. and

REVERSE MORTGAGE SOLUTIONS, INC.,

Defendants.

X

And it is further

Ordered that Leavitt & Kerson shall serve a copy of this order bearing the Clerk's dated stamp of its entry together with Notice of Entry be served on ALL PARTIES to the actions combined for joint trial, and, at the time of filing the Notes of Issue, on the Clerk of the Trial Term Office.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: October 31, 2018

Jamaica, New York

______________________________

Hon. Salvatore J. Modica

Justice, Supreme Court, Queens County