Preview
FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018
To commence the 3D-day statutory time period for appeals as of right under CPLR 5513 (a), you are advised to serve
a copy of this order, with notice
of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
------------------------------------------------------------------------)(
JUSTO KELLY, as Administrator of the Estate of
SHARLENE STINSON,
Plaintiff,
Index No. 68582/16
-against- Motion Sequence No. 001
Decision and Order
CITY OF YONKERS, CITY OF YONKERS POLICE
DEPARTMENT, ROCCO MERRANTE, JOSEPH.
DiBENNEDETTO and "JOHN DOES" and "JANE DOES"
1-10, said names being fictitious and presently unknown,
Defendants.
-------------------------------------------------------------------------)(
EVERETT,J.
The following papers were read on the motion:
Notice of Motion/Affirmation in Supp/Affof Serv/Exhibit A (docs 27-30)
Affirmation in Opp/Exhibits A-D/ Aff of Serv (docs 32-37)
In this action arising from a fatal automobile accident, plaintiff Justo Kelly (Kelly), as
Administrator of the Estate of Sharlene Stinson (Stinson), moves for an order, pursuant to CPLR
602 (a), consolidating the above-captioned action (Action L) with the action commenced by
plaintiff against defendant Blasco Beltran (Beltran), under Westchester County index number
68739/17 (Action 2), for the purpose of discovery and trial, and amending the caption
accordingly. The premise of the motion is that the two actions arise out of the same facts,
transactions and occurrences, and involve common questions oflaw and fact. Defendants City of
Yonkers, City of Yonkers Police Department (YPD), Rocco Merrante (Merrante) and Joseph
DiBennedetlo (DiBennedetlo) jointly oppose the Illotion. Upon the foregoing papers, the Illotion
is denied.
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FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016
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The following facts are taken from the pleadings, motion papers, affidavits, documentary
evidence and the record, and are undisputed unless otherwise indicated.
Plaintiff commenced the instant action by filing a summons and complaint in the Office
of the Westchester County Clerk on Dccember 8, 2016, to recover damages arising from a head-
on collision that occurred on November 23,20.15, and resulted in Stinson's death. For the
purpose of the motion, it is undisputed that, the accident occurred when the motor vehicle, a
white van (Van), being operated in the southbound lane of Warburton Avenue in Yonkers, New
York by a non party teenager, J.C., crossed into the northbound lane of Warburton Avenue and
collided with the front of the motor vehicle being operated in that lane by Stinson.
According to the complaint in Action], the Van, which had been spotted in the vicinity
of several reported thefts, had also been reported stolen by its owner, Beltran. A YPD police
vehicle operated by Merrante and DiBcnnedetto spotted the Van, as it was being driven by J.D.
A high speed police chase of the Van ensued, and, according to Kelly, due to the carelessness and
recklessness of the high speed chase, J.C. was caused to, or forced to, cross into the northbound
lane where the Van co.llided with Stinson's vehicle. Kelly's causes of action sound in
negligence, wrongful death, negligent hiring, training and supervision, and negligent entrustment
ofa dangerous instrument to Merrante and DiBennedetto, who were acting in the course of their
employment at the time of the accide,nt.
According to the complaint in Action 2, Kelly is seeking damages from Beltran stemming
from his ownership of the Van at the time of the incident. Thc causes of action, ~hich sound in
negligence, wrongful death, punitive damages, negligence, negligent entrustment of a dangerous
instrument, and negligent supervision, are premised on allegations that, by his actions and/or
2
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FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018
inactions, Beltran allowed, or gave permissive use to, J.e. to operate his Van. Beltran's defense
is that, several days prior to the incident, on November 14,20 IS, he reported to YPD that his
Van had been stolen from his driveway.
By way of motion practice, Beltran sought a summary judgment dismissal of the Action 2
complaint on the basis that his documentary evidence - specifically, the YPD vehicle theft report
- rebuts the presumption of permissive use. By decision and order dated April 25, 2018, the
Honorable Terry Jane Ruderman, before whom Action 2 is pending, denied Beltran's motion,
finding that questions of fact exist as to applicability of the permissive use presumption in light
of Beltran's inconsistent statements about the location of the keys to the Van at the time the Van
was stolen from his driveway.
CPLR 602 (a) states:
"[w]hen actions involving a common question of law or fact are pending before a
court, the court, upon motion, may order a joint trial of any or all the matters in
issue, may order the actions consolidated, and may make such other orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay."
Well settled New York caselaw confirms that, while it is appropriate to consolidate
actions involving common questions of law or fact, it isinappropriate to consolidate actions
which involve different factual and legal issues (see Pau v Bellavia, 145 AD2d 609, 611 [2d
Dept 1988]; Jacobsen v Hills, 101 AD2d 980, 980 [3d Dept 1984]).
Here, the undisputed fact that Stinson died as a result of the head-on collision between
her vehicle and Van, is insufficient to overcome thc lack of commonality of facts and of
applicable law shared by Action 1 and Action 2. The issues in Action 1 pertain, essentially, to
the reasonableness, and/or recklessness, of the municipal defendants' conduct on November 23,
2015~ whether such conduct was privilcgcd~ and \vhether itwas a cause of the collision that
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FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018
precipitated Stinson's death. The issues in Action 2, however, relate solely to whether Beltran,
by his actions and/or inactions on or about November 14,2015, gave express or implied
permission to the alleged thief, presumably, J.D., to use his Van, such that he (Beltran) can be
held liable for Stinson's death. Rather than avoiding the costly duplication of discovery, and/or
the possibility of inconsistent verdicts, consolidating the instant actions is likely.to create
unnecessary confusion, which might result in inadvel1ent prejudice to one or more parties.
Accordingly, it is
ORDERED that plaintiffs motion is denied.
This constitutes the decision and order of the Court.
Dated: White Plains, New York
September 26,2018
ENTER:
HO
Filed via NYSCEF
Paul B. Weitz & Associates
Traub Lieberman Straus & Shrewsberry, LLP
Keane & Bernheimer, PLLC
4
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Preview
FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018 To commence the 3D-day statutory time period for appeals as of right under CPLR 5513 (a), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------------)( JUSTO KELLY, as Administrator of the Estate of SHARLENE STINSON, Plaintiff, Index No. 68582/16 -against- Motion Sequence No. 001 Decision and Order CITY OF YONKERS, CITY OF YONKERS POLICE DEPARTMENT, ROCCO MERRANTE, JOSEPH. DiBENNEDETTO and "JOHN DOES" and "JANE DOES" 1-10, said names being fictitious and presently unknown, Defendants. -------------------------------------------------------------------------)( EVERETT,J. The following papers were read on the motion: Notice of Motion/Affirmation in Supp/Affof Serv/Exhibit A (docs 27-30) Affirmation in Opp/Exhibits A-D/ Aff of Serv (docs 32-37) In this action arising from a fatal automobile accident, plaintiff Justo Kelly (Kelly), as Administrator of the Estate of Sharlene Stinson (Stinson), moves for an order, pursuant to CPLR 602 (a), consolidating the above-captioned action (Action L) with the action commenced by plaintiff against defendant Blasco Beltran (Beltran), under Westchester County index number 68739/17 (Action 2), for the purpose of discovery and trial, and amending the caption accordingly. The premise of the motion is that the two actions arise out of the same facts, transactions and occurrences, and involve common questions oflaw and fact. Defendants City of Yonkers, City of Yonkers Police Department (YPD), Rocco Merrante (Merrante) and Joseph DiBennedetlo (DiBennedetlo) jointly oppose the Illotion. Upon the foregoing papers, the Illotion is denied. 1 of 4 FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018 The following facts are taken from the pleadings, motion papers, affidavits, documentary evidence and the record, and are undisputed unless otherwise indicated. Plaintiff commenced the instant action by filing a summons and complaint in the Office of the Westchester County Clerk on Dccember 8, 2016, to recover damages arising from a head- on collision that occurred on November 23,20.15, and resulted in Stinson's death. For the purpose of the motion, it is undisputed that, the accident occurred when the motor vehicle, a white van (Van), being operated in the southbound lane of Warburton Avenue in Yonkers, New York by a non party teenager, J.C., crossed into the northbound lane of Warburton Avenue and collided with the front of the motor vehicle being operated in that lane by Stinson. According to the complaint in Action], the Van, which had been spotted in the vicinity of several reported thefts, had also been reported stolen by its owner, Beltran. A YPD police vehicle operated by Merrante and DiBcnnedetto spotted the Van, as it was being driven by J.D. A high speed police chase of the Van ensued, and, according to Kelly, due to the carelessness and recklessness of the high speed chase, J.C. was caused to, or forced to, cross into the northbound lane where the Van co.llided with Stinson's vehicle. Kelly's causes of action sound in negligence, wrongful death, negligent hiring, training and supervision, and negligent entrustment ofa dangerous instrument to Merrante and DiBennedetto, who were acting in the course of their employment at the time of the accide,nt. According to the complaint in Action 2, Kelly is seeking damages from Beltran stemming from his ownership of the Van at the time of the incident. Thc causes of action, ~hich sound in negligence, wrongful death, punitive damages, negligence, negligent entrustment of a dangerous instrument, and negligent supervision, are premised on allegations that, by his actions and/or 2 2 of 4 FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018 inactions, Beltran allowed, or gave permissive use to, J.e. to operate his Van. Beltran's defense is that, several days prior to the incident, on November 14,20 IS, he reported to YPD that his Van had been stolen from his driveway. By way of motion practice, Beltran sought a summary judgment dismissal of the Action 2 complaint on the basis that his documentary evidence - specifically, the YPD vehicle theft report - rebuts the presumption of permissive use. By decision and order dated April 25, 2018, the Honorable Terry Jane Ruderman, before whom Action 2 is pending, denied Beltran's motion, finding that questions of fact exist as to applicability of the permissive use presumption in light of Beltran's inconsistent statements about the location of the keys to the Van at the time the Van was stolen from his driveway. CPLR 602 (a) states: "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Well settled New York caselaw confirms that, while it is appropriate to consolidate actions involving common questions of law or fact, it isinappropriate to consolidate actions which involve different factual and legal issues (see Pau v Bellavia, 145 AD2d 609, 611 [2d Dept 1988]; Jacobsen v Hills, 101 AD2d 980, 980 [3d Dept 1984]). Here, the undisputed fact that Stinson died as a result of the head-on collision between her vehicle and Van, is insufficient to overcome thc lack of commonality of facts and of applicable law shared by Action 1 and Action 2. The issues in Action 1 pertain, essentially, to the reasonableness, and/or recklessness, of the municipal defendants' conduct on November 23, 2015~ whether such conduct was privilcgcd~ and \vhether itwas a cause of the collision that 3 3 of 4 FILED: WESTCHESTER COUNTY CLERK 09/26/2018 04:32 PM INDEX NO. 68582/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/26/2018 precipitated Stinson's death. The issues in Action 2, however, relate solely to whether Beltran, by his actions and/or inactions on or about November 14,2015, gave express or implied permission to the alleged thief, presumably, J.D., to use his Van, such that he (Beltran) can be held liable for Stinson's death. Rather than avoiding the costly duplication of discovery, and/or the possibility of inconsistent verdicts, consolidating the instant actions is likely.to create unnecessary confusion, which might result in inadvel1ent prejudice to one or more parties. Accordingly, it is ORDERED that plaintiffs motion is denied. This constitutes the decision and order of the Court. Dated: White Plains, New York September 26,2018 ENTER: HO Filed via NYSCEF Paul B. Weitz & Associates Traub Lieberman Straus & Shrewsberry, LLP Keane & Bernheimer, PLLC 4 4 of 4