Preview
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017
SUPREME COURT OF THE STATE OF NEW YORK
COLINTY OF NEW YORK
---------------x
ELINIA DESTINE, AFFIRMATION IN
PARTIAL
Plaintiff, OPPOSITION
-against- Index No.: 15610512016
THE CITY OF NEW YORK, NEW YORK CITY POLICE File No.: 2016-029391
DEPARTMENT and RAYMOND MORRISSEY,
ACTION Number 1
Defendants.
EMONY DESTINE,
Plaintiff, Index No.: 15697612016
-agamst- File No.: 2016-033638
THE CITY OF NEW YORK, NEW YORK CITY POLICE ACTION Number 2
DEPARTMENT, RAYMOND MORzuSSEY and ETINIA
DESTINE,
Defendants
JESSE GOLDBERG, an attomey admitted to practice law in the State of New York and
an Assistant Corporation Counsel of the City of New York affirms the truth of the following.
under the penalties of perjury pursuant to CPLR $)2106 upon information and belief based upon
the records maintained in this office.
1. This affrrmation is submitted, in partial opposition of the motion by Co-
defendant, EUNIA DESTINE, for an Order pursuant to CPLR 602(a), to consolidate the above-
entitled actions for joint discovery and trial, as both actions arise from the same incident, and
involve common questions of law or fact.
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2. Defendant EUNIA DESTINE makes the instant motion to consolidate
based on the assertion that Plaintiff EUNIA DESTINE and Plaintiff EMONY DESTINE's two
claims present similar questions of fact and law. See Plaintiffs Motion atl7. Although Co-
defendant correctly states that the two claims present similar facts and questions of law, these
two actions should still be tried by two separate juries. Consequently, Co-defendant's motion to
consolidate must be denied as to consolidation for a joint trial.
REI,EVANT PR HISTORY
3. For the sake of brevity and judicial economy, the City hereby adopts and
incorporates the procedural history set forth in Co-defendant's motion dated Apnl 12,2017.
4. Both of these actions arise out of a single incident that took place on July
23, 2015, as a result of a motor vehicle accident at the intersection of Adam Clayton Powell
Boulevard and 112th Street, in the County and State of New York. Plaintiffs in Actions Number
I and 2 respectively, Eunia Destine and Emony Destine, served separate Notices of Claim upon
the Comptroller. See Plaintiffs' Notices of Claim, annexed hereto as Exhibit A and B. Both
Plaintiffs in Actions Number 1 and 2 allege that they were injured as a result of a motor vehicle
accident when the vehicle in which Eunia Destine was driving, and Emony Destine was a
passenger, collided with a vehicle operated by the City of New York, specifically, by New York
City police Department employee Raymond Morrissey. See Exhibits A and B.
LEGAL ARGUMENT
I. ACTION NUMBER I ACTION NUMBER 2
SHOIN,D RE, CONSO LIDATED FOR JOINT
DISCOVERY
5. Defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT and RAYMOND MORRISSEY, (hereinafter collectively "the City"), agree that
a
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these two actions both arise from the same incident, and involve some common questions of law
or fact.
6. Each of the Plaintiffs in Action Number 1 and Action Number 2 allege
personal injuries arising out of the same incident. Notably, a Preliminary Conference has not
been held in either action. To date, no depositions have been held in either action. A
Compliance Conference has been scheduled in Action Number 2 for June 15, 2017. It is
respectfully submitted that both matters should be consolidated for the purposes of discovery.
7. The City respectfully submit that consolidation of these related actions is
the most expedient method to resolve all issues therein CPLR 602(a) provides in pertinent part:
When 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 proceedings
therein as may tend to avoid unnecessary costs or
delay.
In addition to the foregoing, case law dictates, that absent prejudice to an opposing party's
substantial right, cases sharing common questions of law, facts, and issues, should be
consolidated. Nigro v. Pickett, 39 A.D.3d 720, 722 (2d Dep't 2007) ("Where common
questions of law or fact exist, a motion to consolidate pursuant to CPLR 602(a) should be
granted absent a showing of prejudice to a substantial right by the party opposing the motion.");
Flaherty v. RCP Assocs., 208 A.D.2d 496 (2d Dep't 1994)
8. Consolidation is appropriate where the cases involve common questions of
law or fact. of S.S of Monrovia 26 N.Y.2d 157 (1970),
cert. denied Frederick Snare Corp. v. Vigo S.S. Corp., 400 U.S. 819 (1970). Cases involving
common questions of law or fact ought to be consolidated, unless the adverse party can
demonstrate prejudice to a substantial right. Fisher 40th & 3rd Co. v. Welsbach Elec. Corp., 266
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A.D.2d 169, 170 (1st Dep't 1999); Moretti v. 860 West Tower. Inc.,221 A.D.2d l9l, 192 (lst
Dep't 1995); Moore v. Chase Manhattan Bank. N.4.,217 A.D.2d 419 (lst Dep't 1995); Amtorg
Tradine Corp. v. Broadwa)' & 56th Street Assocs, 191 A.D.2d 212 (1st Dep't 1993); Matter of
Vieo S.S. Corp.. 26 N.Y.2d at 162.
II ACTION NIIMRER I A ACTION NUMBER 2
SHOULD BE TRIED BY TWO SEPARATE JURIES
TO AVOID PREJUDICE TO THE CITY
9. Although this Court has discretion in consolidating two actions that
involve common questions of fact or law, a joint trial should not be ordered where it could cause
substantial prejudice to adverse parties. See Fisher 40th & 3rd Co. 266 A.D.2d at 170. The
party opposing consolidation has the burden of demonstrating prejudice of a substantial right. Id.
(citing Matter of Vigo S.S. Corp., 26 N.Y.2d at 162).
10. Even in two actions that primarily arise from claims of negligence, aparty
may be substantially prejudiced through the testimony of another party. See Deon v. Fortuna,
303 A.D.2d 541, 542 (2ndDep't 2003). The testimony of a Plaintiff in one action may cause
substantial prejudice through conceding or denying liability in the second action. See id.
11. An adverse party can also show substantial prejudice where a joint trial of
two actions would cause confusion for the jury. See McDavid v. Gunnigle, 50 A.D.2d 737,738
(lst Dep't 1975). In the instance where two actions would require the jury to consider the
ultimate liability among all the parties, despite the separate claims, the court can order separate
trials to avoid jury confusion. See id. (stating that it is improper for a jury to consider both
liability and insurance coverage in one trial).
12. Here, the conflicting testimony of the two Plaintiffs and the inevitable jury
confusion caused by the differing questions of law in these two actions would cause a substantial
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prejudice to the Cit¡r. Although in Action Number 1, Plaintiff Eunia Destine only has claims
against the City, in Action Number 2, Plaintiff Emony Destine has claims against both the City
and Eunia Destine. Additionally, although no depositions have been held in either action yet, the
testimony of the two Plaintiffs-whether they concede or deny liability---could substantially
prejudice the City's ability to defend its case in both actions. See Deon v. Fortuna, 303 A.D.2d
at 542. Moreover, this conflicting testimony combined with separate questions of law would
likely cause jury confusion. While these two actions do share some common questions of law
and fact, a joint trial would force a jury to consider the ultimate liability of all parties
simultaneous rather than examining each question of law separately. This type ofjury confusion
should be avoided through separate trials for the two actions, or at a minimum, a single trialwith
two juries. Therefore, Action 1 and Action 2 should be tried by two separate juries to avoid
prejudice to the City.
WHEREFORE, it is respectfully requested that this Court deny the Co-Defendant Eunia
Destine's motion for an Order pursuant to CPLR $ 602(a) to consolidate the two above
referenced actions for a joint trial, and that this Court grant such other and further relief as this
Court may deem just and proper.
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Dated New York, New York
April'?ß,201t
ZACHARY W. CARTER
Corporation Counsel
Attorney for the Defendants
THE CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT and RAYMOND
MORRISSEY
100 Church Street
New York, New York 10007
By:
J
Assistant Corporation Counsel
Contact: Nicholas Sorrentino
Tel:212-356-2740
To:
LAV/ OFFICES OF KEVIN T. GRENNAN, PLLC
Attorneys for Plaintiff (Action #1)
EMONY DESTINE
666 Old Country Road, Suite 555
Garden City, NY 11530
(st6) 74s-s4e0
LAW OFFICE OF DENNIS BARTLING
Attomeys for Defendant (Action #l)
EUNIA DESTINE
875 Merrick Avenue
Westbury, New York, 11590
(sr6)22e-4400
KRAVET, HOEFER & MAHER, P.C.
Attorneys for Plaintiff (Action #2)
ETINIA DESTINE
I l35A Morris Park Avenue, Suite 202
Bronx, New York 10461
(718) e31-3131
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Index No. 15610512016
SUPREME COURT OF THE STATE OF NEW YORK
COLINTY OF NEW YORK
EUNIA DESTINE,
Plaintiff,
-against
THE CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT and RAYMOND MORRISSEY,
Defendants
AFFIRMATION IN PARTIAL OPPOSITION
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneyþr the City of New York
100 Church Street
New York, New York 10007
Contoct: Nick Sonentino
Tel: (212) 356-2740
LD#2016-029391
Due and timely service is hereby admitted.
New York, N.Y. ......,
2017.
.........Esq.
Attorney.for
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Preview
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF NEW YORK ---------------x ELINIA DESTINE, AFFIRMATION IN PARTIAL Plaintiff, OPPOSITION -against- Index No.: 15610512016 THE CITY OF NEW YORK, NEW YORK CITY POLICE File No.: 2016-029391 DEPARTMENT and RAYMOND MORRISSEY, ACTION Number 1 Defendants. EMONY DESTINE, Plaintiff, Index No.: 15697612016 -agamst- File No.: 2016-033638 THE CITY OF NEW YORK, NEW YORK CITY POLICE ACTION Number 2 DEPARTMENT, RAYMOND MORzuSSEY and ETINIA DESTINE, Defendants JESSE GOLDBERG, an attomey admitted to practice law in the State of New York and an Assistant Corporation Counsel of the City of New York affirms the truth of the following. under the penalties of perjury pursuant to CPLR $)2106 upon information and belief based upon the records maintained in this office. 1. This affrrmation is submitted, in partial opposition of the motion by Co- defendant, EUNIA DESTINE, for an Order pursuant to CPLR 602(a), to consolidate the above- entitled actions for joint discovery and trial, as both actions arise from the same incident, and involve common questions of law or fact. 1 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 2. Defendant EUNIA DESTINE makes the instant motion to consolidate based on the assertion that Plaintiff EUNIA DESTINE and Plaintiff EMONY DESTINE's two claims present similar questions of fact and law. See Plaintiffs Motion atl7. Although Co- defendant correctly states that the two claims present similar facts and questions of law, these two actions should still be tried by two separate juries. Consequently, Co-defendant's motion to consolidate must be denied as to consolidation for a joint trial. REI,EVANT PR HISTORY 3. For the sake of brevity and judicial economy, the City hereby adopts and incorporates the procedural history set forth in Co-defendant's motion dated Apnl 12,2017. 4. Both of these actions arise out of a single incident that took place on July 23, 2015, as a result of a motor vehicle accident at the intersection of Adam Clayton Powell Boulevard and 112th Street, in the County and State of New York. Plaintiffs in Actions Number I and 2 respectively, Eunia Destine and Emony Destine, served separate Notices of Claim upon the Comptroller. See Plaintiffs' Notices of Claim, annexed hereto as Exhibit A and B. Both Plaintiffs in Actions Number 1 and 2 allege that they were injured as a result of a motor vehicle accident when the vehicle in which Eunia Destine was driving, and Emony Destine was a passenger, collided with a vehicle operated by the City of New York, specifically, by New York City police Department employee Raymond Morrissey. See Exhibits A and B. LEGAL ARGUMENT I. ACTION NUMBER I ACTION NUMBER 2 SHOIN,D RE, CONSO LIDATED FOR JOINT DISCOVERY 5. Defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT and RAYMOND MORRISSEY, (hereinafter collectively "the City"), agree that a 2 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 these two actions both arise from the same incident, and involve some common questions of law or fact. 6. Each of the Plaintiffs in Action Number 1 and Action Number 2 allege personal injuries arising out of the same incident. Notably, a Preliminary Conference has not been held in either action. To date, no depositions have been held in either action. A Compliance Conference has been scheduled in Action Number 2 for June 15, 2017. It is respectfully submitted that both matters should be consolidated for the purposes of discovery. 7. The City respectfully submit that consolidation of these related actions is the most expedient method to resolve all issues therein CPLR 602(a) provides in pertinent part: When 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 proceedings therein as may tend to avoid unnecessary costs or delay. In addition to the foregoing, case law dictates, that absent prejudice to an opposing party's substantial right, cases sharing common questions of law, facts, and issues, should be consolidated. Nigro v. Pickett, 39 A.D.3d 720, 722 (2d Dep't 2007) ("Where common questions of law or fact exist, a motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion."); Flaherty v. RCP Assocs., 208 A.D.2d 496 (2d Dep't 1994) 8. Consolidation is appropriate where the cases involve common questions of law or fact. of S.S of Monrovia 26 N.Y.2d 157 (1970), cert. denied Frederick Snare Corp. v. Vigo S.S. Corp., 400 U.S. 819 (1970). Cases involving common questions of law or fact ought to be consolidated, unless the adverse party can demonstrate prejudice to a substantial right. Fisher 40th & 3rd Co. v. Welsbach Elec. Corp., 266 -3- 3 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 A.D.2d 169, 170 (1st Dep't 1999); Moretti v. 860 West Tower. Inc.,221 A.D.2d l9l, 192 (lst Dep't 1995); Moore v. Chase Manhattan Bank. N.4.,217 A.D.2d 419 (lst Dep't 1995); Amtorg Tradine Corp. v. Broadwa)' & 56th Street Assocs, 191 A.D.2d 212 (1st Dep't 1993); Matter of Vieo S.S. Corp.. 26 N.Y.2d at 162. II ACTION NIIMRER I A ACTION NUMBER 2 SHOULD BE TRIED BY TWO SEPARATE JURIES TO AVOID PREJUDICE TO THE CITY 9. Although this Court has discretion in consolidating two actions that involve common questions of fact or law, a joint trial should not be ordered where it could cause substantial prejudice to adverse parties. See Fisher 40th & 3rd Co. 266 A.D.2d at 170. The party opposing consolidation has the burden of demonstrating prejudice of a substantial right. Id. (citing Matter of Vigo S.S. Corp., 26 N.Y.2d at 162). 10. Even in two actions that primarily arise from claims of negligence, aparty may be substantially prejudiced through the testimony of another party. See Deon v. Fortuna, 303 A.D.2d 541, 542 (2ndDep't 2003). The testimony of a Plaintiff in one action may cause substantial prejudice through conceding or denying liability in the second action. See id. 11. An adverse party can also show substantial prejudice where a joint trial of two actions would cause confusion for the jury. See McDavid v. Gunnigle, 50 A.D.2d 737,738 (lst Dep't 1975). In the instance where two actions would require the jury to consider the ultimate liability among all the parties, despite the separate claims, the court can order separate trials to avoid jury confusion. See id. (stating that it is improper for a jury to consider both liability and insurance coverage in one trial). 12. Here, the conflicting testimony of the two Plaintiffs and the inevitable jury confusion caused by the differing questions of law in these two actions would cause a substantial 4 4 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 prejudice to the Cit¡r. Although in Action Number 1, Plaintiff Eunia Destine only has claims against the City, in Action Number 2, Plaintiff Emony Destine has claims against both the City and Eunia Destine. Additionally, although no depositions have been held in either action yet, the testimony of the two Plaintiffs-whether they concede or deny liability---could substantially prejudice the City's ability to defend its case in both actions. See Deon v. Fortuna, 303 A.D.2d at 542. Moreover, this conflicting testimony combined with separate questions of law would likely cause jury confusion. While these two actions do share some common questions of law and fact, a joint trial would force a jury to consider the ultimate liability of all parties simultaneous rather than examining each question of law separately. This type ofjury confusion should be avoided through separate trials for the two actions, or at a minimum, a single trialwith two juries. Therefore, Action 1 and Action 2 should be tried by two separate juries to avoid prejudice to the City. WHEREFORE, it is respectfully requested that this Court deny the Co-Defendant Eunia Destine's motion for an Order pursuant to CPLR $ 602(a) to consolidate the two above referenced actions for a joint trial, and that this Court grant such other and further relief as this Court may deem just and proper. -5- 5 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 Dated New York, New York April'?ß,201t ZACHARY W. CARTER Corporation Counsel Attorney for the Defendants THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT and RAYMOND MORRISSEY 100 Church Street New York, New York 10007 By: J Assistant Corporation Counsel Contact: Nicholas Sorrentino Tel:212-356-2740 To: LAV/ OFFICES OF KEVIN T. GRENNAN, PLLC Attorneys for Plaintiff (Action #1) EMONY DESTINE 666 Old Country Road, Suite 555 Garden City, NY 11530 (st6) 74s-s4e0 LAW OFFICE OF DENNIS BARTLING Attomeys for Defendant (Action #l) EUNIA DESTINE 875 Merrick Avenue Westbury, New York, 11590 (sr6)22e-4400 KRAVET, HOEFER & MAHER, P.C. Attorneys for Plaintiff (Action #2) ETINIA DESTINE I l35A Morris Park Avenue, Suite 202 Bronx, New York 10461 (718) e31-3131 -6- 6 of 7 FILED: NEW YORK COUNTY CLERK 04/28/2017 02:29 PM INDEX NO. 156105/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 04/28/2017 Index No. 15610512016 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF NEW YORK EUNIA DESTINE, Plaintiff, -against THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT and RAYMOND MORRISSEY, Defendants AFFIRMATION IN PARTIAL OPPOSITION ZACHARY W. CARTER Corporation Counsel of the City of New York Attorneyþr the City of New York 100 Church Street New York, New York 10007 Contoct: Nick Sonentino Tel: (212) 356-2740 LD#2016-029391 Due and timely service is hereby admitted. New York, N.Y. ......, 2017. .........Esq. Attorney.for -7 - 7 of 7