Jihyun Kim v Santos
Annotate this CaseDecided on December 31, 2019
Supreme Court, New York County
Jihyun Kim and Doyun Kim, Plaintiffs,
against
Jason T. Santos and Queensbury Taxi Cab and Limousine Servi Ces, LLC, Defendants. BILLY R. BLODGETT and ROBYN L. BLODGETT, Plaintiffs, JASON T. SANTOS and QUEENSBURY TAXI CAB AND LIMOUSINE SERVICES, LLC, Defendants.
BILLY R. BLODGETT and ROBYN L. BLODGETT, Plaintiffs,
against
JASON T. SANTOS and QUEENSBURY TAXI CAB AND LIMOUSINE SERVICES, LLC.,
152102/2018
Law Offices of Michael S. Lamonsoff, New York (Anthony C. Sears of counsel), for plaintiffs Jihyun Kim and Doyun Kim (Action No. 1)
The Law Office of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for plaintiffs Billy R. Blodgett and Robyn L. Blodgett (Action No. 2)
Dwyer & Taglia, Esqs., New York (Gary J. Dwyer of counsel), for defendants (Actions No. 1 and No. 2)
Martin D. Auffredou, J.
Defendants seek to consolidate the two actions, pursuant to CPLR 602, and to change [*2]venue of the consolidated action from New York County to Washington County, pursuant to CPLR 510. Plaintiffs in Action No. 1, Jihyun Kim and Doyun Kim ("plaintiffs Kim" or "plaintiffs in Action No. 1"), cross-move to retain venue of Action No. 1 in New York County. Plaintiffs in Action No. 2, Billy R. Blodgett and Robyn L. Blodgett ("plaintiffs Blodgett" or "plaintiffs in Action No. 2"), support defendants' motion to consolidate and to change venue of the consolidated action to Washington County.
The two actions arise from a motor vehicle collision that occurred on February 4, 2018, in Washington County, when a vehicle operated by defendant Jason T. Santos ("Santos") and owned by defendant Queensbury Taxicab and Limousine Services, LLC ("Queensbury Taxi") ("defendants" vehicle) struck a vehicle operated by plaintiff Billy Blodgett. Plaintiffs Kim were passengers in defendants' vehicle.[FN1]
Plaintiffs Kim commenced Action No. 1 in New York County on March 8, 2018. At the time of the commencement of Action No. 1, plaintiffs Kim were residents of New York County. However, they subsequently moved to California. Plaintiffs Blodgett are residents of Washington County. Plaintiffs Blodgett commenced Action No. 2 in Washington County on August 3, 2018. Santos resides in, and Queensbury Taxi has its office, in Warren County, a county contiguous to Washington County.
In deciding the motion and cross-motion, the Court has reviewed and considered the following; the Notice of Motion by defendants, dated June 17, 2019; the affirmation of Gary J. Dwyer, Esq., dated June 17, 2019, with exhibits, including the affidavit of Breanna L Whiting, sworn to May 12, 2019, in support of defendants' motion; the affirmation of Michael S. Martin, Esq., sworn to July 24, 2019, on behalf of plaintiffs in Action No. 2, in support of defendants' motion; the Notice of Cross-Motion by plaintiffs in Action No. 1, dated July 30, 2019; the affirmation of Anthony C. Sears, Esq., dated July 30, 2019, with exhibits, including the affidavit of Dr. Steven Touliopoulos, M.D., affirmed August 5, 2019, in opposition to defendants' motion and in support of the cross-motion; the reply affirmation of Gary J. Dwyer, Esq., dated August 9, 2019, with exhibits, in further support of defendants' motion and in opposition to the cross-motion; and the reply affirmation of Anthony C. Sears, Esq., dated August 9, 2019, in further support of the cross-motion and in further opposition to defendants' motion.
"[W]here common questions or law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right" (Rist v Comi, 260 AD2d 890, 891 [3d Dept 1999] [internal citations omitted]; see also, e.g., Govt. Employees Ins. Co. v Uniroyal Goodrich Tire Co., 242 AD2d 765, 766 [3d Dept 1997] [actions properly consolidated in that involved common questions of law and fact]). The two actions arose out of the same motor vehicle collision and, as such, they undoubtedly involve common questions of law and fact. Plaintiffs Kim have not demonstrated they would suffer prejudice to a substantial right if the cases are consolidated or joined for trial. The Court finds plaintiffs Kim's argument that jury confusion could result from a joint trial unavailing. Therefore, consolidation is appropriate. However, because the two actions are pending in different counties, the issue of venue must, of necessity, be considered.
"Although venue for consolidated actions initiated in differing counties should ordinarily [*3]be placed in the county where the first action was commenced, special circumstances may warrant placement of the consolidated action in the second venue" (Messina v Upper Hudson Primary Care Consortium, Inc., 26 AD3d 698, 698-99 [3d Dept 2006] [internal citations omitted). "[T]he final decision rests in the discretion of the court and any circumstances may be considered which negate placing venue where the first action was commenced" (Magee v Hutcher, 174 AD2d 941, 941 [3d Dept 1991]).
"While there is no precise formula to follow, several factors should be taken into consideration, namely, the place of the accident, the residence of the parties, convenience of witnesses to the accident, the convenience of medical experts and the state of the trial calendar in the respective counties" (Leung v Sell, 115 AD2d 929 [3d Dept 1985]; see also Boyea v Lambeth, 33 AD2d 928, 929 [3d Dept 1970] ["special circumstances may arise when the cause of action arises in the county where the second action has been commenced; hospitalization and treatment of injured persons occur in the county where the second action has been commenced; convenience of witnesses points toward trial in the county where the second action has been commenced; or court calendars are less congested in the county where the second action has been commenced"] [internal citations omitted] (Boyea v Lambeth, 33 AD2d 928, 929 [3d Dept 1970]).
In the case at bar, the relevant factors and circumstances weigh in favor of venue being placed in Washington County and negate placing venue of the consolidated action in New York County. The motor vehicle accident giving rise to the actions occurred in Washington County. The Blodgett plaintiffs reside in Washington County and both defendants reside in a contiguous county. Further, although the Kim plaintiffs resided in New York County when they commenced Action No. 1, they no longer reside in that county and, in fact, no longer even reside in the State of New York. The non-party witnesses to the accident all reside in Washington County and the law enforcement and emergency personnel who responded were from Washington County; therefore, the convenience of these witnesses favors Washington County. Finally, the initial medical treatment of all injured plaintiffs took place at Glens Falls Hospital, which is located in Warren County.[FN2]
The only factor which weighs in favor of venue in New York County is the inconvenience to plaintiff Doyun Kim's treating orthopedist, Dr. Steven Touliopoulos, who avers that he is unable to take off from his practice the two to three days he states would be required to offer testimony if trial is held in Washington County. The Court notes that plaintiffs Kim have emphasized that plaintiff Jihyun Kim has sustained extremely serious injuries and have not offered evidence that any of her treating or expert physicians cannot testify if trial is held in Washington County. The Court finds that any inconvenience to plaintiff Doyun Kim's treating physician is outweighed by all of the aforementioned circumstances which weigh in favor of placing venue in Washington County.
Accordingly, it is hereby
ORDERED that defendants' motion is granted in its entirety; and it is further
ORDERED that plaintiffs Kim's cross-motion is denied; and it is further
ORDERED that Action No. 1 and Action No. 2 are consolidated, in Washington County, under Index No. 100173/2018; and it is further
ORDERED that the caption of the consolidated action shall read:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WASHINGTON
JIHYUN KIM, DOYUN KIM, BILLY R.
BLODGETT and ROBYN L. BLODGETT,
Index No. 100173/2018
Plaintiffs,RJI No. 57-1-2019-0184
against
JASON T. SANTOS and QUEENSBURY TAXI CAB
AND LIMOUSINE SERVICES, LLC.,
Defendants.
; and it is further
ORDERED that upon service of a copy of this Decision and Order with notice of entry, and payment of any applicable fees, the New York County Clerk is directed and authorized to transmit all papers on file in Action No. 1 (Index No. 152102/2018), to the Washington County Clerk; and it is further
ORDERED that upon receipt of the file in Action No. 1, the Washington County Clerk be, and hereby is, directed and authorized to consolidate the files of the two above-entitled actions under the Index Number of Action No. 2 (100173/2018).
The foregoing constitutes the Decision and Order of the Court.
Signed this 31st day of December, 2019, at Lake George, New York.
ENTER: December 31, 2019
_________________________
HON. MARTIN D. AUFFREDOU
JUSTICE OF THE SUPREME COURT
The Court is uploading the Decision and Order to the New York State Courts Electronic Filing System (NYSCEF). Such uploading does not constitute service with notice of entry (see 22 NYCRR 202.5-b [h] [2.) Footnotes
Footnote 1: Two other non-parties, Kansas Brown and Kendra Jenkins, were also traveling as passengers in defendants' vehicle at the time of the accident.
Footnote 2:There is nothing in the record to permit the Court to compare the states of the trial calendars in the respective counties. Therefore, the Court cannot find that this factor weighs in favor of one county or the other.
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