A Tale of Two Courts (requesting consolidation of related cases in 2 different forums)
Parties often find themselves first in Family Court and then, one of the parties files an action for divorce in Supreme Court. Often, it makes little sense to litigate in the 2 different forums because the issues in each matter are inextricably intertwined. To remedy this waste, some Supreme Court judge, on consent of the parties, will issue a consolidation order. However, of one of the parties objects, a formal application for consolidation (seeking to move the cases from 2 forums to the Supreme Court) will be required. Without question, the Supreme Court has the authority, independent of statute, to direct a joint trial or consolidation of two or more actions. Pollak v. Long Island Lighting Co., 246 App. Div. 765 (2d. Dep’t, 1935). In actions involving a common question of law or facts are pending, a Court may order a joint trial of any or all of the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid any unnecessary costs or delay, and to prevent divergent results. CPLR §602(a); Dukhvalov v. Pshierer, 15 A.D. 3d 334 (2d Dep’t, 2005); Chinatown Apartments, Inc. v. New York City Transit Authority, 100 A.D. 2d 824 (1st Dep’t, 1984); McLaughlin, Practice Commentaries, McKinney’s Consolidated Laws of New York, Book 7B, C602:1; 3 Weinstein-Korn-Miller, New York Civil Practice: CPLR ¶ 602.04.
In order to overcome a movant’s request for consolidation, there must be a showing of prejudice to a substantial right by the party opposing the motion. Cusumano v. Cusumano, 114 A.D.3d 633 (2nd Dep’t 2014); Giasemis v. Giasemis, 139 A.D.3d 794,796 (2nd Dep’t 2016).This is a difficult burden to overcome, as public policy favors consolidation or joint trials whenever possible. Megyesi v. Automotive Rentals, Inc., 115 A.D. 2d 596 (2d Dep’t, 1985); Mideal Homes Corporation v. L&C Concrete Work, Inc., 90 A.D. 789 (2d Dep’t, 1982); In Re Daniel, 181 Misc. 2d 941 (Civ. Ct., Bronx Co., 1999).