Lima v Jackson

[*1] Lima v Jackson 2020 NY Slip Op 50115(U) Decided on January 31, 2020 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2020
Supreme Court, Kings County

Jhon Wallace Lima, Plaintiff,

against

David Daryl Jackson Jr., Defendant.



517671/17



Attorney for Action No. 1 Plaintiff

Emily K. Lavelle, Esq.

100 Herricks Road, Ste. 201

Mineola, NY 11501

Attorneys for Action No. 1 and No. 2 Defendant Daryl David Jackson, Jr.

The Law Offices of Morris, Duffy, Alonso & Faley

101 Greenwich Street, 22nd Floor

New York, NY 10006

Attorneys for Action No. 2 Plaintiffs

Ginsberg & Capsi, PLLC

100 Herricks Road, Ste. 205B

Mineola, NY 11501

Attorney for Action No. 2 Defendant Ean Holdings, LLC

Peknic, Peknic, & Schaefer, LLC.

1005 West Beech Street

Long Beach, NY 11561
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Jhon Wallace Lima (hereinafter Lima) on October 30, 2019, under motion sequence number one, for an order pursuant to CPLR 602 joining for discovery and trial [*2]the instant action with another related action. The motion is unopposed.

Notice of Motion

Affirmation in Support

Exhibits 1-3

BACKGROUND

On September 13, 2017, Lima commenced the instant action bearing Index No. 517671/17 (hereinafter Action No. 1), to recover damages for personal injuries against the defendant David Daryl Jackson Jr. (hereinafter Jackson), by filing a summons and verified complaint with the King's County Clerk's office.

Lima's verified complaint in Action No. 1 alleges the following salient facts. On December 15, 2016, at approximately 10:42 PM, Lima was driving a 2016 Hyundai bearing license plate number HGZ6795 on Front street near its intersection with Meadowbrook Road in Nassau County, New York. At the same time, date and place, Jackson was driving a 2009 Volkswagon, registered in the State of Georgia and bearing license plate number CDQ7649. Lima's vehicle and Jackson's vehicle collided due to Jackson's negligent operation and maintenance of his vehicle. The collision caused Lima to sustain serious physical injuries as defined by section 5102(d) of the Insurance Law of the State of New York.

On July 5, 2018, Lucjean Chickel and Samantha Debrose commenced an action bearing Index No. 513832/18 (hereinafter Action No. 2), to recover damages for personal injuries against Jackson, Lima and Ean Holdings, Inc (hereinafter the Action 2 defendants), by filing a summons and verified complaint with the King's County Clerk's office.

Chickel and Debrose's amended verified complaint in Action No. 2 alleges the following salient facts. On December 15, 2016, Jackson was operating a vehicle bearing license plate number CDQ7649 in which Chickel and Debrose were passengers. On that date Jackson collided with an automobile bearing license plate number HGZ6795 while traveling on Front Street at its intersection with Meadowbrook Road, in Nassau County, New York. The vehicle bearing license plate number HGZ6795 was owned by Ean Holdings Inc. and was being operated by Lima with Ean Holdings Inc.'s knowledge and consent. The collision was caused by Lima and Jackson's negligent operation of their respective vehicles. The collision caused Chickel and Debrose to sustain serious physical injuries as defined by section 5102(d) of the Insurance Law of the State of New York.

MOTION PAPERS

Lima's motion papers consist of a notice of motion, an affirmation of counsel, and three annexed exhibits labeled 1 through 3. Exhibit 1 is a copy of the summons and verified complaint in Action No. 1 bearing Index no. 517671/17. Exhibit 2 is a copy of the summons and verified complaint in Action No. 2 bearing Index No. 513832/18. Exhibit 3 is a copy of the verified amended complaint in Action No. 2 bearing Index No. 513832/18.

LAW AND APPLICATION

By the instant motion, Lima seeks an order pursuant to CPLR 602(a) consolidating Action No. 1 and Action No. 2 for purposes of joint discovery and trial.

CPLR 602(a) provides as follows:

Consolidation (a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

A motion to consolidate two or more actions rests within the sound discretion of the trial court (Rhoe v Reid, 166 AD3d 919, 921 [2nd Dept 2018], citing, American Home Mtge. Servicing, Inc. v Sharrocks, 92 AD3d 620, 622 [2nd Dept 2012]). Where common questions of law or fact exist, a motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion. Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts" (Rhoe v Reid, 166 AD3d at 921, citing Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850 [2nd Dept 2008]).

Here, both Action No. 1 and Action No. 2 concern the exact same vehicle collision. Both Action No. 1 and Action No. 2 allege that a vehicle owned and operated by David Daryl Jackson Jr. collided with the vehicle operated by Jhon Wallace Lima. The amended verified complaint in Action number 2 contains the additional allegations of fact that Lucjean Chickel and Samantha Debrose were passengers in Jackson's vehicle and that the car driven by Lima was being operated with the permission of its owner, Ean Holdings Inc. Inasmuch as both actions arise from the same incident and share common issues of fact and law, consolidation for the purposes of joint discovery and trial would serve the interest of justice and judicial economy and avoid the potential inconsistent verdicts (Rhoe v Reid 166 AD3d 919 [2nd Dept 2018]). Furthermore, the motion is unopposed, thus there is no indication of unfair prejudice to the defendants.

CONCLUSION

The motion by plaintiff Jhon Wallace Lima for an order pursuant to CPLR 602 (a) joining the instant action for joint discovery and trial with Action No. 2 bearing Index Number 513832/18 is granted.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.