Preview
FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
DAVID BARKER,
Plaintiff,
-vs-
ANTHONY V. GERVERA and AMANDA D. GERVERA,
Defendants.
Index No. EF2021-00001543
Judge James P. McClusky
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO
CONSOLIDATE
COSTELLO, COONEY & FEARON, PLLC
Attorneys for Defendants, Anthony V. Gervera
and Amanda D. Gervera
Office and Post Office Address
211 West Jefferson Street, Suite 1
Syracuse, New York 13202
Telephone: (315) 422-1152
MATTHEW W. O'NEIL,
Of Counsel
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NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024
PRELIMINARY STATEMENT
Defendants Anthony V. Gervera and Amanda D. Gervera ("Defendants") respectfully
submit this Memorandum of Law in opposition to David Barker's ("Plaintiff") motion to
consolidate this lawsuit with a legal malpractice action (the "Malpractice Lawsuit"). Plaintiff's
primary allegation in the Malpractice Lawsuit is that his attorney "failed to adequately represent
my interests in the real estate transaction to carry out my objective that I receive a life estate in my
property."
As such, the Malpractice Lawsuit is about the inclusion o f a life estate in the deed
Plaintiff executed.
However, as a result of the Court's rulings in prior motions, Plaintiff's desire for a life
estate is not at issue in this case, such that there is a complete factual and legal distinction between
the two actions. In its Decision and Order dated November 27, 2023, this Court granted Plaintiffs
partial summary judgment (the 2023 Decision"). The 2023 Decision permitted discovery and
further litigation regarding an alleged promise that Plaintiff may continue to reside at the property,
but determined that the promise was inconsistent with a life estate. As such Defendants oppose
Plaintiff's motion to consolidate on the grounds that the two cases, though superficially related in
their factual background, do not share any factual or legal questions to warrant consolidation.
Defendants further submit that, if granted, Plaintiff's motion to consolidate would be prejudicial
at trial by introducing the factfinder to irrelevant evidence regarding Plaintiff's private dealings
with his attorney.
Accordingly, Defendants respectfully request an Order denying Plaintiff's motion for
consolidation in its entirety.
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ARGUMENT
THE CASE AT BAR DOES NOT SHARE COMMON ISSUES OF LAW OR FACT WITH
THE MALPRACTICE LAWSUIT
Under CPLR 602(a), actions "involving a common question of law or fact [which] are
court"
pending before a may be consolidated by motion. Humiston v. Grose, 144 A.D.2d 907, 907
(4th Dep't 1988); see also C.P.L.R. 602(a). Consolidation, however, is always within the discretion
of the trial court, and is not a compulsory exercise in judicial economy. Brown v. Brooklyn Union
Gas Co., 137 A.D.2d 479, 480 (2d Dep't 1988). Even where multiple cases share common
questions of law or fact, if the legal principles applicable to each are sufficiently dissimilar, and
prejudice[,]"
"consolidation will result in jury confusion and a motion to consolidate should be
denied. Cty. of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691 (2d Dep't 2013).
theories,"
Where cases hinge on "wildly disparate legal denial of a motion to consolidate is
warranted. Gouldsbury v. Dan's Supreme Supermarket, Inc., 138 A.D.2d 675, 676 (2d Dep't 1988).
Consolidation, moreover, is "appropriate where it will avoid unnecessary duplication of trials, save
"
unnecessary costs and expense . . . . Best Price Jewelers.Com, Inc. v. Internet Data Storage &
Systems, Inc., 51 A.D.3d 839, 839 (2d Dep't 2008). A party opposing consolidation may defeat
such a motion by demonstrating that it would prejudice a substantial right. Id. citing Chinatown
Apts. V. New York City Tr. Auth., 100 A.D.2d 824, 825 (1st Dep't 1984).
The Second Department's decision County of Westchester v. White Plains Ave., LLC is
illustrative of how legal malpractice is typically ill-suited for consolidation with superficially
related cases. Cty. of Westchester involved a motion to consolidate an action proceeding on breach
of contract with one pursuing legal malpractice. Cty. of Westchester, 105 A.D.3d 690, 690 (2d
plaintiffs'
Dep't 2013). Supreme Court denied the motion to consolidate the actions pursuant to
2
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NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024
CPLR 602(a). Id. On appeal, the Second Department upheld the denial, finding that, "although
fact,"
[the breach of contract and malpractice cases] involve[d] a common question of the
malpractice case concerned "numerous additional allegations of profession negligence that [were]
irrelevant"
to the breach of contract case. Id. The court further found that the issues were
susceptible to being confused by the finder of fact, as the "issues and applicable legal principles in
the actions were so dissimilar. Id. The First Department's decision in Simoni v. Costigan similarly
illustrates that malpractice claims do not lend themselves to consolidation. The court in Simoni
upheld Supreme Court's denial of a motion to consolidate, finding that "consolidation [would]
defendants"
engender jury confusion and prejudice the in the malpractice action. Simoni v.
Costigan, 100 A.D.3d 531, 531 (1st Dep't 2012).
In his motion to consolidate, Plaintiff cites Shanley v. Callanan Industries, Inc., arguing
that this case stands in favor of consolidation here. (NYSCEF Doc. No. 135, at ¶ 7). Shanley,
however, concerned questions of issue preclusion. Shanley v. Callanan Indus., 54 N.Y.2d at 57.
There, two separate actions in negligence were brought following a head-on automobile collision.
Id. at 54. The two actions were unnecessarily severed immediately prior to trial, precipitating later
appeals concerning the doctrine of collateral estoppel. Id. at 57. Consequently, in its decision, the
Court of Appeals noted the benefits of consolidated actions: "Where complex issues are
intertwined, albeit in technically different actions, it would be better not to fragment trials, but to
time."
. . . determine all the issues involved between the parties at the same Id. at 57.
To be clear, Plaintiff has not actually supported his motion by identifying any common
issues of law or fact between the lawsuits. Cases must share common questions of law or fact even
before proceeding to argue that consolidation would be prejudicial to one's case. Consequently,
Defendants submit that the case at bar and the Malpractice Lawsuit are fundamentally dissimilar.
3
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The Malpractice Lawsuit relates to Plaintiff's alleged instruction to his attorney to include
a life estate in the deed. Here, however, the remaining claims against Defendants, are limited to
dies.'"
"an unfulfilled promise that [Plaintiffj could 'live in his house until he (NYSCEF Doc. No.
117, at 4). The Court determined that the alleged promise "is NOT consistent with a claim of a life
estate."
Id. Thus, the two lawsuits are based on entirely separate issues: 1) Plaintiff's alleged
instructions to his attorney to include a life estate in the Malpractice Lawsuit; and 2) Defendants
alleged agreement to agree regarding future residence at the farm (but not a promise of a life estate)
in this action. To put it succinctly, Defendants did not promise Plaintiff a life estate, so evidence
that Plaintiff instructed his attorney to obtain a life estate-the entire basis of the Malpractice
Lawsuit-is irrelevant.
For this reason, a joint trial of these cases poses a significant risk of confusion on the part
of a jury, which may understandably conflate evidence against the malpractice defendants as being
against Defendants. Indeed, whether or not the defendants in the malpractice action are found
liable has no bearing on the outcome of this case. The reverse is also true of Plaintiff's legal
malpractice claim, as a jury may incorrectly infer that evidence regarding "an unfulfilled promise
dies'"
that [Plaintiffj could 'live in his house until he has bearing upon whether the malpractice
defendant was directed to include a life estate in the deed. The Court has ruled that Plaintiff's
promise"
allegation of "an unfulfilled by Defendants does not give rise to a life estate. As such,
there is no reason-or judicial efficiency-in trying the disparate issues together. Indeed, the
superficial similarity of the distinct issues makes the concern of jury confusion all the greater.
4
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NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024
CONCLUSION
Based upon the foregoing, it is respectfully submitted this Court shoulder enter an Order
denying Plaintiff's motion to consolidate on the grounds that the actions turn on disparate legal
Defendants'
theories and that consolidation would prejudice the case by confusing the finder of
fact, together with such other and further relief as this Court may deem just and proper.
DATED: April 25, 2024
COSTELLO, COONEY & FEAROl , PLLC
!
MATTHEW W. O'NEIL
Attorneys for Defendants,
Office and Post Office Address
211 West Jefferson Street
Syracuse, NY 13202
Telephone: (315) 422-1152
MATTHEW W. O'NEIL
Of Counsel
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NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024
CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
The foregoing Memorandum of Law was prepared on a computer.
The total number of words in the Memorandum of Law, inclusive of point headings and footnotes,
and exclusive of the caption, the table of contents, table of citations, signature block or certificate
of compliance, etc. is 1,008, which complies with the word count limit.
Dated: April 25, 2024
COSTELLO, COONEY & FEA O J, PLLC
MATT$EW W. O'NÈI
Attorneys for Defendant,
Anthony V. Gervera and Amanda D Gervera
Office and Post Office Address
211 West Jefferson Street, Suite 1
Syracuse, New York 13202
Telephone: (315) 422-1152
6
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Preview
FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON DAVID BARKER, Plaintiff, -vs- ANTHONY V. GERVERA and AMANDA D. GERVERA, Defendants. Index No. EF2021-00001543 Judge James P. McClusky MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO CONSOLIDATE COSTELLO, COONEY & FEARON, PLLC Attorneys for Defendants, Anthony V. Gervera and Amanda D. Gervera Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 MATTHEW W. O'NEIL, Of Counsel 1 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 PRELIMINARY STATEMENT Defendants Anthony V. Gervera and Amanda D. Gervera ("Defendants") respectfully submit this Memorandum of Law in opposition to David Barker's ("Plaintiff") motion to consolidate this lawsuit with a legal malpractice action (the "Malpractice Lawsuit"). Plaintiff's primary allegation in the Malpractice Lawsuit is that his attorney "failed to adequately represent my interests in the real estate transaction to carry out my objective that I receive a life estate in my property." As such, the Malpractice Lawsuit is about the inclusion o f a life estate in the deed Plaintiff executed. However, as a result of the Court's rulings in prior motions, Plaintiff's desire for a life estate is not at issue in this case, such that there is a complete factual and legal distinction between the two actions. In its Decision and Order dated November 27, 2023, this Court granted Plaintiffs partial summary judgment (the 2023 Decision"). The 2023 Decision permitted discovery and further litigation regarding an alleged promise that Plaintiff may continue to reside at the property, but determined that the promise was inconsistent with a life estate. As such Defendants oppose Plaintiff's motion to consolidate on the grounds that the two cases, though superficially related in their factual background, do not share any factual or legal questions to warrant consolidation. Defendants further submit that, if granted, Plaintiff's motion to consolidate would be prejudicial at trial by introducing the factfinder to irrelevant evidence regarding Plaintiff's private dealings with his attorney. Accordingly, Defendants respectfully request an Order denying Plaintiff's motion for consolidation in its entirety. 2 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 ARGUMENT THE CASE AT BAR DOES NOT SHARE COMMON ISSUES OF LAW OR FACT WITH THE MALPRACTICE LAWSUIT Under CPLR 602(a), actions "involving a common question of law or fact [which] are court" pending before a may be consolidated by motion. Humiston v. Grose, 144 A.D.2d 907, 907 (4th Dep't 1988); see also C.P.L.R. 602(a). Consolidation, however, is always within the discretion of the trial court, and is not a compulsory exercise in judicial economy. Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480 (2d Dep't 1988). Even where multiple cases share common questions of law or fact, if the legal principles applicable to each are sufficiently dissimilar, and prejudice[,]" "consolidation will result in jury confusion and a motion to consolidate should be denied. Cty. of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691 (2d Dep't 2013). theories," Where cases hinge on "wildly disparate legal denial of a motion to consolidate is warranted. Gouldsbury v. Dan's Supreme Supermarket, Inc., 138 A.D.2d 675, 676 (2d Dep't 1988). Consolidation, moreover, is "appropriate where it will avoid unnecessary duplication of trials, save " unnecessary costs and expense . . . . Best Price Jewelers.Com, Inc. v. Internet Data Storage & Systems, Inc., 51 A.D.3d 839, 839 (2d Dep't 2008). A party opposing consolidation may defeat such a motion by demonstrating that it would prejudice a substantial right. Id. citing Chinatown Apts. V. New York City Tr. Auth., 100 A.D.2d 824, 825 (1st Dep't 1984). The Second Department's decision County of Westchester v. White Plains Ave., LLC is illustrative of how legal malpractice is typically ill-suited for consolidation with superficially related cases. Cty. of Westchester involved a motion to consolidate an action proceeding on breach of contract with one pursuing legal malpractice. Cty. of Westchester, 105 A.D.3d 690, 690 (2d plaintiffs' Dep't 2013). Supreme Court denied the motion to consolidate the actions pursuant to 2 3 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 CPLR 602(a). Id. On appeal, the Second Department upheld the denial, finding that, "although fact," [the breach of contract and malpractice cases] involve[d] a common question of the malpractice case concerned "numerous additional allegations of profession negligence that [were] irrelevant" to the breach of contract case. Id. The court further found that the issues were susceptible to being confused by the finder of fact, as the "issues and applicable legal principles in the actions were so dissimilar. Id. The First Department's decision in Simoni v. Costigan similarly illustrates that malpractice claims do not lend themselves to consolidation. The court in Simoni upheld Supreme Court's denial of a motion to consolidate, finding that "consolidation [would] defendants" engender jury confusion and prejudice the in the malpractice action. Simoni v. Costigan, 100 A.D.3d 531, 531 (1st Dep't 2012). In his motion to consolidate, Plaintiff cites Shanley v. Callanan Industries, Inc., arguing that this case stands in favor of consolidation here. (NYSCEF Doc. No. 135, at ¶ 7). Shanley, however, concerned questions of issue preclusion. Shanley v. Callanan Indus., 54 N.Y.2d at 57. There, two separate actions in negligence were brought following a head-on automobile collision. Id. at 54. The two actions were unnecessarily severed immediately prior to trial, precipitating later appeals concerning the doctrine of collateral estoppel. Id. at 57. Consequently, in its decision, the Court of Appeals noted the benefits of consolidated actions: "Where complex issues are intertwined, albeit in technically different actions, it would be better not to fragment trials, but to time." . . . determine all the issues involved between the parties at the same Id. at 57. To be clear, Plaintiff has not actually supported his motion by identifying any common issues of law or fact between the lawsuits. Cases must share common questions of law or fact even before proceeding to argue that consolidation would be prejudicial to one's case. Consequently, Defendants submit that the case at bar and the Malpractice Lawsuit are fundamentally dissimilar. 3 4 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 The Malpractice Lawsuit relates to Plaintiff's alleged instruction to his attorney to include a life estate in the deed. Here, however, the remaining claims against Defendants, are limited to dies.'" "an unfulfilled promise that [Plaintiffj could 'live in his house until he (NYSCEF Doc. No. 117, at 4). The Court determined that the alleged promise "is NOT consistent with a claim of a life estate." Id. Thus, the two lawsuits are based on entirely separate issues: 1) Plaintiff's alleged instructions to his attorney to include a life estate in the Malpractice Lawsuit; and 2) Defendants alleged agreement to agree regarding future residence at the farm (but not a promise of a life estate) in this action. To put it succinctly, Defendants did not promise Plaintiff a life estate, so evidence that Plaintiff instructed his attorney to obtain a life estate-the entire basis of the Malpractice Lawsuit-is irrelevant. For this reason, a joint trial of these cases poses a significant risk of confusion on the part of a jury, which may understandably conflate evidence against the malpractice defendants as being against Defendants. Indeed, whether or not the defendants in the malpractice action are found liable has no bearing on the outcome of this case. The reverse is also true of Plaintiff's legal malpractice claim, as a jury may incorrectly infer that evidence regarding "an unfulfilled promise dies'" that [Plaintiffj could 'live in his house until he has bearing upon whether the malpractice defendant was directed to include a life estate in the deed. The Court has ruled that Plaintiff's promise" allegation of "an unfulfilled by Defendants does not give rise to a life estate. As such, there is no reason-or judicial efficiency-in trying the disparate issues together. Indeed, the superficial similarity of the distinct issues makes the concern of jury confusion all the greater. 4 5 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 CONCLUSION Based upon the foregoing, it is respectfully submitted this Court shoulder enter an Order denying Plaintiff's motion to consolidate on the grounds that the actions turn on disparate legal Defendants' theories and that consolidation would prejudice the case by confusing the finder of fact, together with such other and further relief as this Court may deem just and proper. DATED: April 25, 2024 COSTELLO, COONEY & FEAROl , PLLC ! MATTHEW W. O'NEIL Attorneys for Defendants, Office and Post Office Address 211 West Jefferson Street Syracuse, NY 13202 Telephone: (315) 422-1152 MATTHEW W. O'NEIL Of Counsel 5 6 of 7 FILED: JEFFERSON COUNTY CLERK 04/25/2024 04:34 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 04/25/2024 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b The foregoing Memorandum of Law was prepared on a computer. The total number of words in the Memorandum of Law, inclusive of point headings and footnotes, and exclusive of the caption, the table of contents, table of citations, signature block or certificate of compliance, etc. is 1,008, which complies with the word count limit. Dated: April 25, 2024 COSTELLO, COONEY & FEA O J, PLLC MATT$EW W. O'NÈI Attorneys for Defendant, Anthony V. Gervera and Amanda D Gervera Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 6 7 of 7