Commercial Division Blog

Posted: December 4, 2019 / Categories Commercial, Consolidation

Court Refuses to Consolidate Cases in Significantly Different Procedural Postures

On November 21, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Summit Rest. Repairs & Sales, Inc. v. New York City Dept. of Educ., 2019 NY Slip Op. 33457(U), refusing to consolidate cases in significantly different procedural postures, explaining:

CPLR 602(a) provides that:

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 orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

A motion for consolidation is generally addressed to the sound discretion of the trial court and absent a showing of substantial prejudice to the non-moving party, a consolidation motion should be granted where common questions of law and fact exist. However, as the First Department has held, even where there are common questions of law or fact, consolidation is properly denied if the actions are at markedly different procedural stages and consolidation would result in undue delay in the resolution of either matter. Abrams is on point here: there, a motion was made to consolidate an action placed on the trial calendar with an action that had barely advanced to discovery. The trial court denied the motion and the First Department affirmed, reasoning that denial of consolidation was appropriate since consolidation would delay resolution of both actions. The same rationale applies here and is even more compelling as the instant action has been pending in this court since 2012. It should not be delayed any further. If the parties do timely complete discovery in the DOE action such that a note of issue is filed before trial in this case, the court will consider anew an application to consolidate the two actions for trial. The court simply cannot delay resolution of this 2012 action if that discovery cannot be quickly completed.

(Internal quotations and citations omitted).

Consolidation is a useful tool to avoid duplication of effort when there are similar lawsuits. As this decision shows, a court is not required to consolidate similar cases when they are in different procedural stages. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding whether two or more lawsuits can be consolidated.