Joint Trial/Consolidation 602

CPLR § 602 Consolidation
(a) Generally
(b) Cases pending in different courts

Alizio v Feldman, 2012 NY Slip Op 05378 (2nd Dept. 2012)

Where, as here, common questions of law or fact exist, a motion pursuant to CPLR 602(a) for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (id. at 1088; see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540, 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606). Here, the defendants failed to show prejudice to a substantial right if this action is joined with others for trial (see Moor v Moor, 39 AD3d 507, 507-508). Moreover, mere delay is not a sufficient basis to justify the denial of a joint trial (see Perini Corp. v WDF, Inc., 33 AD3d at 606; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494, 496).

Accordingly, the Supreme Court should have granted the plaintiffs' motion to join this action for trial with the action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, and several related actions previously joined for trial.

Matter of Matter of Rostkowski v Baginski, 2012 NY Slip Op 05177 (2nd Dept. 2012)

The petitioner's contention that the Family Court acted improperly by consolidating his petition with a petition in a related case is without merit. Although it is true that a court may not order consolidation sua sponte (see CPLR 602[a]; AIU Ins. Co. v ELRAC, Inc., 269 AD2d 412; Matter of Amy M., 234 AD2d 854, 855), here, there was no consolidation. The individual petitions were left intact. They were merely brought together to be heard on the same day. The captions of the individual petitions remained the same, and different determinations were rendered in separate orders.

Hae Sheng Wang v Pao-Mei Wang, 2012 NY Slip Op 05141 (2nd Dept. 2012)

The plaintiffs' cause of action alleging breach of contract involves issues of law and fact in common with those in the holdover proceeding pending in the Civil Court, and most of the parties are the same. "Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR 602(b)] should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010). The defendant did not make a showing that removal and consolidation would prejudice a substantial right. Therefore, those branches of the plaintiffs' motion which were to stay the holdover proceeding, to remove it to the Supreme Court, Queens County, and to consolidate it with this action should have been granted (see CPLR 602[b]; Kally v Mount Sinai Hosp., 44 AD3d at 1010-1011).

The case also has a discussion about res judicata.

 

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