Cardenas v Garrido

[*1] Cardenas v Garrido 2021 NY Slip Op 50495(U) Decided on May 25, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2021
Supreme Court, Kings County

Luis Cardenas, Plaintiff,

against

Erick Balcarcel Garrido, L. KNIFE & SON, INC., UB DISTRIBUTORS, LLC, Defendants



Index No. 524794/2019



Attorney for Plaintiff

Joshua Fogel

Sanocki Newman & Turret LLP

225 Broadway 8th Floor

New York, NY 10007

Attorney for Defendants

John L. Marsigliano

Mulholland Minion Davey McNiff & Beyrer

374 Hillside Avenue

Williston Park, NY 11596
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion filed on October 01, 2020 under motion sequence two, by the defendant Erick Balcarcel Garrido (hereinafter Garrido), for an order pursuant to CPLR 602 consolidating for discovery and trial the instant action (hereinafter Action No. 1) with the action entitled Gabriel v Cardenas, et al Index No. 510225/2020 (hereinafter Action No. 2) and with the action entitled Punina v UB Distributors LLC, et al. Index No. 514680/2020 (hereinafter Action No. 3). The motion is partially opposed.

Notice of Motion

Affirmation in Support

Exhibits A-C

Affirmation in Opposition

BACKGROUND

On November 13, 2019, plaintiff Luis Cardenas (hereinafter Cardenas) commenced the instant action (Action No. 1) to recover damages for personal injury against defendants Garrido, L. Knife & Son, Inc. and UB Distributors LLC by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO).

On December 26, 2019, defendants Garrido, L. Knife & Son, Inc. and UB Distributors, LLC, joined issue in Action No.1 by filing a joint verified answer with the KCCO.

On June 16, 2020, plaintiff Alan G. Gabriel (hereinafter Gabriel) commenced an action to recover damages for personal injuries against Cardenas, Union Beer Distributors LLC and Garrido (hereinafter Action No. 2) by filing a summons and verified complaint with the KCCO.

On September 9, 2020 defendants Union Beer Distributors LLC and Garrido joined issue in Action No. 2 by filing a joint verified answer with the KCCO.

On August 11, 2020, plaintiff Jose Jackson Romero Punina (hereinfter Punina) commenced an action to recover damages for personal injuries against UB distributors LLC, Garrido and Cardenas (hereinafter Action No. 3) by filing a summons and verified complaint with the KCCO.

On September 11, 2020 defendants Union Beer Distributors LLC and Garrido joined issue in Action No. 3 by filing a joint verified answer with the KCCO.

LAW AND APPLICATION

CPLR 602 (a) provides as follows:

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.

Where a common question of law or fact exist, a motion to consolidate or a motion for a joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion (Wilson v Perlman, 185 AD3d 984, 984 [2nd Dept 2020], citing Hae Sheng Wang v Pao—Mei Wang, 96 AD3d 1005 [2nd Dept 2012]). The trial court has broad discretion in determining whether to order consolidation (Hanover Ins. Group v Mezansky, 105 AD3d 1000 [2nd Dept 2013]). In exercising that discretion, the court must consider that the interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact (Hanover Ins. Group, 105 AD3d at 1001). Furthermore, consolidation or joinder for trial is appropriate to 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 (Robinson v 47 Thames Realty, LLC, 158 AD3d 780, 781 [2nd Dept 2018]).

By the instant motion, Garrido, one of the defendants in the instant action, that is, Action No. 1, seeks an order pursuant to CPLR 602 consolidating the instant action with Action No. 2 and Action No. 3 for joint discovery and trial. Garrido is a defendant in all three actions. The verified complaints in Action No. 1, Action No. 2 and Action No. 3 are all for damages for personal injuries sustained in a motor vehicle collision.

The verified complaints in all three actions arise from a singular motor vehicle accident [*2]that took place on October 7, 2019 on West 51st Street near its intersection with 9th Avenue in New York County. The accident allegedly took place when the motor vehicle operated by Cardenas, the plaintiff in the first action, came into contact with the motor vehicle operated by Garrido and owned by UB Distributors LLC and L. Knife & Son Inc.

Inasmuch as all three actions arise from the same incident and share common issues of fact and law, an order joining the actions for 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, there is no indication of unfair prejudice to any party.

Garrido, however, sought an order consolidating the three actions as opposed to joining them. It was this distinction which was the basis for the partial opposition of Cardena's counsel. Consolidating the cases, as opposed to joining them, would cause confusion for the jury because Cardenas would be both a plaintiff and a defendant (Bass v France, 70 AD2d 849 [1st Dept 1979]). For this reason, it would be proper to grant the motion to the extent that the three actions be joined for discovery and trial rather than consolidated.

CONCLUSION

The motion by Erick Balcarcel Garrido for an order pursuant to CPLR 602 consolidating for discovery and trial the instant action, Action No. 1 with the action entitled Gabriel v Cardenas, et al Index No. 510225/2020, Action No. 2 and with the action entitled Punina v UB Distributors LLC, et al. Index No. 514680/2020, Action No. 3 is granted to the extent that the three actions are joined for discovery and trial.

The foregoing constitutes the decision and order of this Court.

ENTER:

______________________________________

J.S.C.