### 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 NEWYORK NEWYORK COUNTY PRESENT: HON. HASA A. KINGO Justice

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PATRICIA MARCELLO, Plaintiff,

- V - THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, THE NEWYORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant.

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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. Plaintiffseeks 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). Plaintiffargues thatboth actions arise from identical facts and circumstances, andinvolve common questions oflaw and fact. Defendant Spectrum New York Metro LLC (hereinafter "Spectrum") opposes the motion, contending that the temporal disparity between the commencement ofeach action mayprejudice 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 ofother defendants, who have enjoyed nearly a yearmore for litigation.

155633/2022 MARCELLO, PATRICIA vs. THE CITY OF NEW YORK ET AL Motion No. 001
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### [* 1]NYSCEF DOC. NO. 18 INDEX NO. 155633/2022 RECEIVED NYSCEF: 05/15/2024

CPLR §602 states that "[w]hen actions involving a common question oflaw 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 ofthe 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 oflaw 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 ofprejudice to a substantial right by a party opposing the motion, consolidation should be granted where common questions offact or law exist (Gadelov v. Shure, 273 AD2d 375 [2d Dept 2000]; Berman v. Greenwood Village CommunityDev., Inc., 156 AD2d 326 [2d Dept 1989]). Here, itis undisputedthatthe actions arise out ofthe accident and involve the sameparties. Likewise, the witnesses in both actions are identical and the issues to be resolved are the same. Therefore, a full consolidation ofthe two actions would minimize court expense, as well as the timewitnesses andpartieswill haveto appear, andwill avoidduplication oftestimony andexpedite discovery. The court acknowledges the arguments regardingprejudice advancedby Spectrum, but finds that such prejudice can be mitigated by directing plaintiffto exchange all written discovery from the instant action with Spectrum, andbyproviding theparties in the subsequentlyfiled action the right to depose the parties from the instant action. Moreover, the courtnotes that apreliminary conferencehas yetto beheldin eitheraction, thereby qualifyingthe argumentsregardingprejudice 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 courtwith PATRICIAMARCELLO 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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### [* 2]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 bearthe following caption:

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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 CONSULTING LLC, and SPECTRUM NEW YORK METRO, LLC, Defendant.

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; 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 ofthis order, movant shall serve a copy ofthis order with notice ofentry on the Clerk ofthe Court, who shall consolidate the documents in the actions hereby consolidated and shall markhisrecords to reflectthe consolidation; and itis further ORDERED that counsel for the movant shall contact the staffofthe Clerk ofthe Court to arrange for the effectuation ofthe 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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### [* 3]NYSCEF DOC. NO. 18 INDEX NO. 155633/2022 RECEIVED NYSCEF: 05/15/2024

Proceduresfor 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 ofthis Court shall file the documents being consolidated in the consolidated case file under the index number ofthe consolidated action in the New York State Courts Electronic Filing System or make appropriate notations of such documents in the e-filing records ofthe court so as to ensure access to the documents in the consolidated action; and it is further ORDERED that, within 30 days from entry ofthis order, movant shall serve a copy ofthis order with notice ofentry on the Clerk ofthe General Clerk's Office, who is hereby directed to reflectthe consolidationbyappropriatelymarking the court's records; and itis further ORDERED that such service upon the Clerk ofthe General Clerk's Office shall be made in accordance withthe procedures set forth in the aforesaidProtocol; andit is further ORDERED that plaintiffis 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 thatthe partiesto the action formerly filed underIndexNo. 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 directedto set this matter down for apreliminary conference in the DCM Part onthe 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 NEWYORK ET AL Motion No. 001
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