Marcello v City of New York

2024 NY Slip Op 31691(U)

May 15, 2024

Supreme Court, New York County

Docket Number: Index No. 155633/2022

Judge: Hasa A. Kingo

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.
NYSCEF DOC. NO. 18 

INDEX NO. 155633/2022 

RECEIVED NYSCEF: 05/15/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. HASA A. KINGO 

Justice 

---------------------------------------------------------------------------------X 

PATRICIA MARCELLO, 

Plaintiff, 

- V -

THE CITY OF NEW YORK, THE NEW YORK CITY 

DEPARTMENT OF TRANSPORTATION, THE NEW YORK 

CITY DEPARTMENT OF ENVIRONMENTAL 

PROTECTION, 

Defendant. 

---------------------------------------------------------------------------------X 

PART 05M 

INDEX NO. 155633/2022 

MOTION DATE 03/29/2024 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 

17 

were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL 

Upon the foregoing documents, it is ORDERED that plaintiff Patricia Marcello's 

(hereinafter "plaintiff') motion to consolidate, pursuant to CPLR §602, is granted. Plaintiff seeks 

to consolidate this action, Index No.: 155633/2022 (Action #1), with a related action pending in 

this court, the Supreme Court, New York County, bearing Index No.: 150127/2023 (Action #2). 

Plaintiff argues that both actions arise from identical facts and circumstances, and involve common 

questions of law and fact. Defendant Spectrum New York Metro LLC (hereinafter "Spectrum") 

opposes the motion, contending that the temporal disparity between the commencement of each 

action may prejudice Spectrum's ability to mount a proper defense in the 2023 action, which has 

yet to have a preliminary conference. Spectrum maintains that its circumstances markedly differ 

from those of other defendants, who have enjoyed nearly a year more for litigation. 

155633/2022 MARCELLO, PATRICIA vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 18 

INDEX NO. 155633/2022 

RECEIVED NYSCEF: 05/15/2024 

CPLR §602 states that "[w]hen actions involving a common question of law or fact are 

pending before a court, the court, upon motion ... may order the actions consolidated." A motion 

to consolidate is addressed to the sound discretion of the trial court ( Gov't Employees Ins. Co. v. 

Uniroyal Goodrich Tire Co., 242 AD2d 765 [3d Dept 1997]). Consolidation can only be ordered 

where there is a common question of law or fact between the two actions involved ( Gibbons v. 

Groat, 22 AD2d 996 [3d Dept 1964 ]; Keenan v. American Bridge Division- United States Steel 

Corp., 31 AD2d 637 [2d Dept 1968]). Absent a showing of prejudice to a substantial right by a 

party opposing the motion, consolidation should be granted where common questions of fact or 

law exist (Gadelov v. Shure, 273 AD2d 375 [2d Dept 2000]; Berman v. Greenwood Village 

Community Dev., Inc., 156 AD2d 326 [2d Dept 1989]). 

Here, it is undisputed that the actions arise out of the accident and involve the same parties. 

Likewise, the witnesses in both actions are identical and the issues to be resolved are the same. 

Therefore, a full consolidation of the two actions would minimize court expense, as well as the 

time witnesses and parties will have to appear, and will avoid duplication of testimony and expedite 

discovery. The court acknowledges the arguments regarding prejudice advanced by Spectrum, but 

finds that such prejudice can be mitigated by directing plaintiff to exchange all written discovery 

from the instant action with Spectrum, and by providing the parties in the subsequently filed action 

the right to depose the parties from the instant action. Moreover, the court notes that a preliminary 

conference has yet to be held in either action, thereby qualifying the arguments regarding prejudice 

advanced by Spectrum. Considering all the arguments advanced, plaintiffs motion is granted 

under the aforementioned conditions. Accordingly, it is hereby 

ORDERED that the motion is granted and the above-captioned action is consolidated in 

this court with PATRICIA MARCELLO vs. EMPIRE CITY SUBWAY COMPANY (LIMITED), 

155633/2022 MARCELLO, PATRICIA vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 18 

INDEX NO. 155633/2022 

RECEIVED NYSCEF: 05/15/2024 

EJM CONSULTING LLC, and SPECTRUM NEW YORK METRO, LLC, Index No. 

150127/2023, pending in this court; and it is further 

ORDERED that the consolidation shall take place under Index No. 155623/2022 and the 

consolidated action shall bear the following caption: 

---------------------------------------------------------------------------------X 

PATRICIA MARCELLO, 

Plaintiff, 

-vTHE CITY OF NEW YORK, THE NEW YORK CITY 

DEPARTMENT OF TRANSPORTATION, THE NEW YORK 

CITY DEPARTMENT OF ENVIRONMENTAL 

PROTECTION, EMPIRE CITY SUBWAY COMPANY 

(LIMITED), EJM CONSUL TING LLC, and SPECTRUM NEW 

YORK METRO, LLC, 

Defendant. 

---------------------------------------------------------------------------------X 

; and it is further 

ORDERED that the pleadings m the actions hereby consolidated shall stand as the 

pleadings in the consolidated action; and it is further 

ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this 

order with notice of entry on the Clerk of the Court, who shall consolidate the documents in the 

actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further 

ORDERED that counsel for the movant shall contact the staff of the Clerk of the Court to 

arrange for the effectuation of the consolidation hereby directed; and it is further 

ORDERED that service of this order upon the Clerk of the Court shall be made in 

accordance with the procedures set forth in the Protocol on Courthouse and County Clerk 

155633/2022 MARCELLO, PATRICIA vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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Page 3 of 4 

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NYSCEF DOC. NO. 18 

INDEX NO. 155633/2022 

RECEIVED NYSCEF: 05/15/2024 

Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's 

website); and it is further 

ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file 

the documents being consolidated in the consolidated case file under the index number of the 

consolidated action in the New York State Courts Electronic Filing System or make appropriate 

notations of such documents in the e-filing records of the court so as to ensure access to the 

documents in the consolidated action; and it is further 

ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this 

order with notice of entry on the Clerk of the General Clerk's Office, who is hereby directed to 

reflect the consolidation by appropriately marking the court's records; and it is further 

ORDERED that such service upon the Clerk of the General Clerk's Office shall be made 

in accordance with the procedures set forth in the aforesaid Protocol; and it is further 

ORDERED that plaintiff is directed to exchange all written discovery from Index No. 

155633/2022 with Spectrum, and shall provide said discovery no later than June 21, 2024; and it 

is further 

ORDERED that the parties to the action formerly filed under Index No. 150127/2023 shall 

have the right to depose the parties under the newly consolidated Index No. 155623/2022; and it 

is further 

ORDERED that the Clerk is directed to set this matter down for a preliminary conference 

in the DCM Part on the next available date. 

5/15/2024 

DATE 

CHECK ONE: □ CASE DISPOSED 

0 GRANTED 

0 NON-FINAL DISPOSITION 

□ DENIED □ GRANTED IN PART 

155633/2022 MARCELLO, PATRICIA vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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□ OTHER 

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