Commercial Division Blog

Posted: August 15, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Categories Consolidation, Insurance

Court Denies Motion To Consolidate So As To Not Delay Case Further

On August 2, 2022, in an opinion in Harleysville Worcester Ins. Co. v. Sompo Am. Ins. Co., 2022 NY Slip Op 50699(U), Justice Robert R. Reed denied Plaintiff’s motion to consolidate.  The Court explained:

Here, the affirmation by Harleysville and the opposition by Lloyd's of London demonstrate that both actions are related to Kaps' underlying accident. The relation of the cases is limited, however, to the triggering coverage event. The Hunt action and the Harleysville action involve separate contractual language, with different coverage provisions. The facts bearing on liability in the Hunt action are inapplicable and irrelevant to an assessment of liability in the Harleysville coverage action. The matters are not related for the purposes of interpreting contractual language assessing additional insured coverage and priority of coverage.

Furthermore, while Harleysville contends that consolidating the two actions would cause no prejudice to any party because discovery in the Hunt action "is ongoing" (NYSCEF DOC NO. 33, ¶ 27), upon reviewing the record, the complaint in the Hunt action was filed on June 1, 2017, and a preliminary conference was held on April 5, 2018, with a note of issue deadline of December 12, 2018. According to NYSCEF, the note of issue deadline was extended to November 25, 2021. It is unclear what discovery, if any, remains in the Hunt action, why the note of issue was not filed, and whether consolidation would further delay this case from proceeding. It also remains unclear how much discovery is needed in the Harleysville action and whether it will further delay the Hunt action as the complaint in the Harleysville action was filed on December 1, 2020, and a preliminary conference has yet to be held.

The Appellate Division, First Department, has held that "[e]ven 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 v Port Auth. Trans-Hudson Corp., 1 AD3d 118, 119, 766 N.Y.S.2d 429 [1st Dept 2003]). As it has been five years since the complaint was filed in the Hunt action and over four years since the preliminary conference was held, that case should not be delayed any further.

The attorneys at Schlam Stone & Dolan frequently litigate consolidation motions.  Please contact the Commercial Division Blog editors at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such motions.