Mackenzie v City of New York

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Mackenzie v City of New York 2023 NY Slip Op 31435(U) May 1, 2023 Supreme Court, New York County Docket Number: Index No. 152528/2016 Judge: Judy H. Kim 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. INDEX NO. 152528/2016 [FILED: NEW YORK COUNTY CLERK 05/01/2023 04:29 P~ NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/01/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: OSRCP PART HON. JUDY H. KIM Justice ----------------------------------------------------------------- ----------------X ANGUS MACKENZIE, INDEX NO. MOTION DATE Plaintiff, 152528/2016 02/10/2023 001 MOTION SEQ. NO. - V - DECISION + ORDER ON MOTION THE CITY OF NEW YORK, Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41 were read on this motion to CONSOLIDATE/JOIN FOR TRIAL In this negligence action, plaintiff moves, pursuant to CPLR §602, to consolidate the instant action ("Action l") with a subsequently-filed action, Angus Mackenzie v. Consolidation Edison Company of New York, Inc. and Time Warner Cable New York City, LLC, and its accompanying third party action, Time Warner Cable New York City LLC v Old HDE Inc., individually and as successor in interest to Hylan Datacom & Electrical Inc., Hylan Datacom & Electrical LLC and Hylan Datacom & Electrical Inc., individually, pending in New York State Supreme Court, New York County, under Index Number 158891/2018 ("Action 2"), for joint discovery and trial. Time Warner Cable New York City LLC ("Time Warner"), a defendant/thirdparty plaintiff in Action 2, opposes the motion, arguing that it will be prejudiced by the consolidation because discovery in Action 1 has progressed further than in Action 2. Time Warner argues, alternatively, that in the event these actions are consolidated, it is entitled to all prior discovery exchanged in Action 1 and to depose each party involved in that action-i.e., plaintiff and defendant the City of New York. 152528/2016 MACKENZIE, ANGUS vs. CITY OF NEW YORK Motion No. 001 [* 1] 1 of 4 Page 1 of4 INDEX NO. 152528/2016 [FILED: NEW YORK COUNTY CLERK 05/01/2023 04:29 P~ NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/01/2023 DISCUSSION Plaintiff's motion is granted. Both actions arise out of plaintiff's November 7, 2015 trip and fall upon the sidewalk abutting at 2291 Third Avenue, New York, New York and involve identical questions oflaw. Therefore, the interests of justice and judicial economy are better served by a joint trial (See Lema v 1148 Corp., 176 AD3d 653, 654 [1st Dept 2019]). The fact that both actions are at different procedural stages does not bar consolidation here (See Progressive Ins. Co. v Countrywide Ins. Co., 10 AD3d 518, 519 [1st Dept 2004]) and any prejudice to Time Warner can be alleviated by an expedited discovery schedule, as set forth below (See Badillo v 400 E. 51 st St. Realty LLC, 74 AD3d 619, 620 [1st Dept 2010]). Accordingly, it is ORDERED that plaintiff's motion is granted and the action Angus Mackenzie v. Consolidation Edison Company of New York, Inc. and Time Warner Cable New York City, LLC, pending in the Supreme Court of New York, New York County under Index No. 158891/2018, shall be consolidated with this action (Index No. 152528/2016); and it is further ORDERED that the consolidation shall take place under New York County Index No. 152528/2016 and the consolidated action shall bear the following caption: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------- ----------------X ANGUS MACKENZIE, Index No.: 152528/2016 Plaintiff, -againstTHE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and TIME WARNER CABLE NEW YORK CITY LLC, Defendants. ----------------------------------------------------------- -------------X TIME WARNER CABLE NEW YORK CITY LLC, 152528/2016 MACKENZIE, ANGUS vs. CITY OF NEW YORK Motion No. 001 [* 2] 2 of 4 Page 2 of 4 [FILED: NEW YORK COUNTY CLERK 05/01/2023 04:29 P~ NYSCEF DOC. NO. 42 INDEX NO. 152528/2016 RECEIVED NYSCEF: 05/01/2023 Third-Party Plaintiff, -againstOLD HDE INC., individually and as successor in interest To HYLAN DAT ACOM & ELECTRICAL INC., HYLAN DAT ACOM & ELECTICAL, LLC Individually and as successor in Interest to, HYLAN DAT ACOM &ELECTRICAL INC., and HYLANN DAT ACOM & ELECTRICAL INC., Individually, Third-Party Defendants. ------------------------------------------------------- -----------------X and it is further ORDERED that the pleadings in these actions are hereby consolidated and shall stand as the pleadings in the consolidated action; and it is further ORDERED that within thirty days from the date of this decision and order, all parties shall exchange any previously disclosed discovery and, within sixty days after such exchange, all parties shall produce witnesses and appear for depositions; and it is further ORDERED that within ten days from the entry of this order, movant shall serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk's Office (60 Centre St., Rm. 119) who shall consolidate the documents in the actions hereby consolidated and mark their records to reflect the consolidation; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E- 152528/2016 MACKENZIE, ANGUS vs. CITY OF NEW YORK Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 152528/2016 !FILED: NEW YORK COUNTY CLERK 05/01/2023 04:29 PM! NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/01/2023 Filing" page on this court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of the Court. 5/1/2023 DATE CHECK ONE: HON. JUDY H. KIM, J.S.C. NON-FINAL DISPOSITION CASE DISPOSED GRANTED DENIED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 152528/2016 MACKENZIE, ANGUS vs. CITY OF NEW YORK Motion No. 001 [* 4] GRANTED IN PART 4 of 4 OTHER REFERENCE Page4 of 4

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