Opinion
13890/06.
Decided June 23, 2008.
The plaintiff Scott J. Daviov in actions #1 and #3 are represented by the law firm of Kagan Gertel, Esq., by Irving Gertel, Esq., of counsel, the plaintiff Deborah A. Scott in action #2 is represented by the law firm of Charles David Segal, Esq., by Charles David Segal, Esq., of counsel, defendants Raymond A. Searles, MV Transportation and the New York City Transit Authority in actions #1, #2 and # 3 are represented by the law firm of Zalukiewitz, Puzo Morrissey, LLP., by Aileen R. Kavanagh, Esq., of counsel, the defendants Davidov and Voskov in action #2 are represented by the law firm of Mendolia Stenz by Paraskevi Gergiou, Esq., of counsel.
These three personal injury actions arise from an automobile accident in Queens County on December 28, 2005, in which an "Access-A-Ride" bus passed through a red light striking a passing vehicle driven by Scott Davidov ("Davidov"), who is the plaintiff in actions #1 and #3 and the defendant in action # 2.
On May 8, 2006, Davidov commenced the first action in the Supreme Court, Kings County against the defendant Raymond Searles ("Searles"), the driver of the Access-A-Ride bus who it is alleged turned to speak with a passenger, Deborah Scott (Scott) and caused the bus to run a steady red light and strike Davidov's vehicle. (Action #1). Davidov also sued defendant MV Transportation ("MV"), the owner of the bus, and the defendant New York City Transit Authority (NYCTA), who contracted with MV to operate the Access-A Ride buses to service handicapped New York City residents. Davidov also sued the City of New York but discontinued the case against the City.
Thereafter, the NYCTA moved to have the Kings County action dismissed because of
Davidov's failure to appear for an examination pursuant to Public Authorities Law (PAL) § 1212(5), ( Lynch v. New York City Transit Authority, 12 AD3d 644 [2d Dept. 2004]). Defendant NYCTA also moved pursuant to CPLR § 511, to transfer venue to Queens County as CPLR § 505(b) provides that, "[t]he place of trial of an action against the New York City Transit Authority shall be in the county within the city of New York in which the cause of action arose, or, if it arose outside of the city, in the county of New York."
On March 30th, 2007, Justice Hinds-Radix dismissed Action # 1 against the NYCTA without prejudice, due to Davidov's failure to comply with PAL § 1212(5). ( Knotts v. City of New York , 6 AD3d 664 [2d Dept. 2004]). In light of this relief, the court denied NYCTA's motion to transfer venue as moot. Searles and MV remained as defendants in Action No. 1. The case has been inactive since Justice Hinds-Radix's decision.
On September 1, 2006, four months after the filing of action No. 1 and seven months prior to Judge Hinds-Radix's ruling dismissing the claims against the NYCTA in Action No. 1, Scott commenced an action in Queens County against defendants MV, Searles, NYCTA, Davidov and Mikhail S. Voskov, the owner of the vehicle driven by Davidov (Action # 2). Action # 2 is currently on the trial calendar in Queens County.
Inexplicably, Davidov waited almost three years since the dismissal of Action # 1 against the NYCTA to institute a new action on March 27, 2008, against the NYCTA but this time brought the action in the proper venue, Queens County.
(Action # 3).
Davidov now moves to consolidate all three actions for joint trial in Kings County. The NYCTA cross moves to consolidate actions # 1 and # 3 in Queens County and opposes Davidov's consolidation motion. Scott opposes both motions.
In support of his motion to consolidate all three actions, Davidov argues that law of the Appellate Division, Second Department necessitates a single trial be held in Kings County because Action # 1 was filed first in Kings County. Davidov relies on Olownia v. Toussaint, 98 AD2d 718 [2d Dept. 1983], Perinton Asssociates v. Heicklen Farms, Inc., 67 AD2d 832 [4th Dept. 1979] and on Manshul Construction Corp v Sawyers Glass Corp., 242 AD2d 262 [2d Dept 1997]. The court in Manshul stated:
[T]he general rule for determining the venue of actions which have been joined for trial, where the actions have been commenced in different counties, is that absent special circumstances, venue should be placed in the county where the first action was commenced.
Davidov argues that there is a lack of special circumstances, and therefore the first action rule is binding irrespective of the fact that the controlling provision, CPLR § 505(b), dictates that the proper venue for the case is Queens County. ( Champion v. City of New York, 203 AD2d 508 [2d Dept. 1994]).
At the outset, it is axiomatic that in cases involving the same issue of law or fact, it is prudent, in the name of judicial economy, to consolidate all actions into one case. ( Reilly v. Reid, 45 NY2d 24). Additionally, should these cases not be consolidated, parties run the risk of having inconsistent holdings. ( Ripley v. Douglas, 309 NY 506) This is especially the case where as here, Davidov is the plaintiff in Actions # 1 and #3 and the defendant in Action # 2 and Action # 2 is already on the trial calendar.
Accordingly, the issue before the Court is whether the proper county for the trial, is Kings County or Queens County .
Davidov argues that the Court is compelled to place the trial in Kings County because of the so-called "first action rule". The NYCTA counters that Queens County is the proper county by operation of the venue provisions of the CPLR.
The first action rule is distinguishable from the case at bar, as the cases cited by Davidov, rest on the premise that venue was proper at the time the initial action was filed. The Court in Perinton Associates v. Heicklen Farms, Inc., 67 AD2d 821 [4th Dept. 1979])emphasized this criteria when it stated that this rule only applies when "[venue in] both counties [is] proper".
This is clearly not the case here. Venue in Kings County was not proper at the time of the filing of Action # 1 because CPLR § 505(b) requires that the site of trial for any action against the NYCTA would have been Queens County where the cause of action arose. Davidov does not argue that Kings County was ever the proper venue for the case, he instead argues that any objection to the venue in Action # 1 was waived when the case was dismissed for his failure to submit to a PAL § 1212(5) examination.
However, this argument is flawed for a number of reasons. First, the NYCTA moved for a change of venue pursuant to CPLR § 511 in Action # 1, thus preserving their objection. Furthermore, Davidov essentially acknowledges that Queens County is the proper venue by bringing his second suit against NYCTA, Action #3, in Queens County. Since Davidov did not have proper venue in the initial action, and the NYCTA did not waive their objection, Davidov's argument is not persuasive. The cases cited by Davidov are distinguishable insofar as the initial venue was proper or the opposition expressly waived their objection to an improper venue. ( Perinton Associates v. Heicklen Farms, Inc., 67 AD2d 832 [4th Dept. 1979]; Manshul Construction Corp. v. Sawyers Glass Corp., 242 AD2d, 262 [2d Dept. 1997]).
Davidov's argument also fails because he relies on cases that discuss the issue of consolidation when there are competing or conflicting venue provisions of the CPLR, which is not the case here. ( Rampe v. Guiliani, 227 AD2d 605 [2d Dept. 1996], Champion v. City of New York, 203 AD2d 508 [2d Dept. 1994], Olownia v. Toussaint, 98 AD2d 718 [2d Dept. 1983], Town of Hempstead v. City of New York, 88 Misc 2d 366 [Sup. Ct.1976], Ferrara v. Leventhal, 46 AD2d 656 [2d Dept. 1974]).
In the case of Town of Hempstead v City of New York, 88 Misc 2d 366 [Sup. Ct 1976], which involved a "tug of war between CPLR § 504 and CPLR § 507," the Court stated that, "[w]here mandatory provisions are in conflict, other factors such as where the action was first commenced, may be considered." The Court in Town of Hempstead cited Champion v. City of New York, 203 AD2d 508 [2d Dept. 1994] and ( Rampe v. Guiliani, 227 AD2d 605 [2d Dept. 1996]). Thus, the first action rule was utilized to resolve the tension between conflicting venue provisions.Here, there is no "tug of war," as the moving party offers no evidence of any other statute or consideration that would affect the predominance of CPLR § 505(b).
Moreover, when the procedural history of this case is reviewed, Action # 1 was filed in May 2006 and Action # 2 was filed in Sept 2006. Since the primary defendant NYCTA was dismissed from the case in March, 2007, for purposes of the Court's review of the "first to file rule", Action # 1 was not properly venued until March, 2007, six months after the filing of Action # 2. Thus, even if the Court were to utilize the first to file rule, Action # 2 would be controlling.
Moreover, by moving to consolidate all three actions in Kings County, Davidov is attempting to benefit by his failure to attend the required PAL § 1212 (5) hearing and his failure to file his action against NYCTA in the proper county. Accordingly, in the special circumstances of this case, the proper venue for all three actions is in Queens County. ( Bukoff v New York City Transit Authority, 184 AD2d 610 [2d Dept. 1992]).
Therefore the Court will exercise its discretion and consolidate all three cases in Queens County. ( Hurst v. Board of Educ., 242 AD2d 130 [3d Dept. 1998]; Ithaca Peripherals v. Sequoia Pac. Sys. Corps., 141 AD2d 1988 [3d Dept. 1988]).In light of the fact that Scott's case is already on the trial calendar in Queens County, and so as not to prejudice Scott, the Court directs the parties in Actions # 1 and # 3 to complete all discovery within 90 days of the date of the service of this order with notice of entry. Accordingly, the Clerk of the Court is directed to transfer Action # 1 to Queens County where a joint trial will be held of Actions #'s 1, 2 and 3.
The foregoing constitutes the decision and order of the Court.