Collazo v. City of New York

213 A.D.2d 270, 624 N.Y.S.2d 130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alfred Lerner, J.), entered October 5, 1994, which granted plaintiff’s motion to consolidate actions Nos. 1 and 2 and directed an immediate trial, unanimously modified, on the facts and in the exercisé of discretion, to the extent of striking the case from the trial calendar for 90 days for completion of disclosure by defendants in action No. 2, and otherwise affirmed, without costs.

There is no question that these two actions commenced by plaintiffs seeking to recover for injuries sustained in a sidewalk slip and fall—the first against the City of New York alleging negligent sidewalk maintenance, and the second against appellants, the abutting land owners, when the City made clear its position that it was appellants who made the existing repair to the sidewalk—present common questions of law and fact, namely, who repaired the sidewalk and who should be held liable for its alleged defect, and that the only factor militating against consolidation is the different procedural stages to which the two actions have progressed. Any prejudice attributable to the circumstance can be avoided by affording appellants an opportunity to complete disclosure on an expedited basis (see, Zupich v Flushing Hosp. & Med. Ctr., 156 AD2d 677).

Accordingly, we strike the case from the trial calendar for a period of 90 days, during which time appellants shall complete disclosure and any other preparations for trial, and the end of which the matter may be restored to the calendar upon 10 days notice. Concur—Sullivan, J. P., Wallach, Asch, Nardelli and Williams, JJ.