10 A.D.3d 518 (2004)

782 N.Y.S.2d 21

In the Matter of Arbitration between PROGRESSIVE INSURANCE COMPANY, Petitioner, and JOSE VASQUEZ et al., Respondents, and COUNTRYWIDE INSURANCE COMPANY, Appellant. (Action No. 1.) ANAIT KILADZE et al., Respondents, v. COUNTRYWIDE INSURANCE COMPANY, Appellant, et al., Defendants. (Action No. 2.)

Appellate Division of the Supreme Court of the State of New York, First Department.

September 16, 2004.

Order, Supreme Court, New York County (Martin Shulman, J.), entered on or about December 9, 2003, which denied the motion of Countrywide Insurance Company to consolidate these actions for joint trial, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the two actions consolidated for the purpose of joint trial.

CPLR 602 (a) gives the trial court discretion to consolidate actions involving common questions of law or fact. Although great deference is to be accorded to the motion court's discretion (see Matter of Hill v Smalls, 49 A.D.2d 724 [1975], appeal dismissed 38 N.Y.2d 893 [1976]), there is a preference for consolidation in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right (Raboy v McCrory Corp., 210 A.D.2d 145, 147 [1994]; Firequench, Inc. v Kaplan, 256 A.D.2d 213 [1998]).

Kiladze, as the party opposing consolidation, has not demonstrated prejudice to a substantial right. Despite her contention that resolution of her claim will require "painstaking discovery" which has just begun, the evidentiary issues in her action are not complex, and, further, there is no reason to believe that relevant documents exist other than those that have already been ordered to be produced (see McGuire v Tishman Constr. Corp., 275 A.D.2d 249, 251 [2000]). Moreover, any prejudice attributable to the different procedural stages to which the two actions have progressed may be avoided by affording an opportunity to complete disclosure on an expedited basis (see Collazo v City of New York, 213 A.D.2d 270 [1995]; see also Fisher 40th & 3rd Co. v Welsbach Elec. Corp., 266 A.D.2d 169, 170 [1999]; Morell v Basa, 300 A.D.2d 134 [2002]).

The existence of an order removing Kiladze as a respondent in Action No. 1 does not warrant a different result. Consolidation would not "undo" the court's prior order, inasmuch as Kiladze would not become a respondent in Action No. 1; it would merely render Kiladze a participant in a joint trial in which her case against Countrywide would be heard at the same time as would be Progressive's case against Countrywide. Nor is there merit in Kiladze's claim that her failure to more fully participate in Action No. 1 would prejudice her if the actions were consolidated, particularly in light of Countrywide's undisputed assertion that nothing significant has transpired in that action since she was removed from it (see Buechel v Bain, 97 N.Y.2d 295, 300 [2001], cert denied 535 U.S. 1096 [2002]).

In the absence of a showing of how consolidation would prejudice a substantial right of Kiladze, and in view of the showing of the possibility of inconsistent verdicts which would prejudice Countrywide if the cases were not consolidated, the denial of Countrywide's motion to consolidate constituted an improvident exercise of discretion (see Phoenix Garden Rest. v Chu, 202 A.D.2d 180 [1994]).


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases