Court Grants Motion To Consolidate Cases For Trial

On December 19, 2024, Justice Joel M. Cohen issued a Decision and Order in Jobar Holding Corp. v. Halio, Index No. 655689/2017, granting the plaintiff’s motion to consolidate her case with a case brought by the same plaintiffs concerning the same series of transactions against her son, David Halio. The Court explained:

Plaintiffs argue that the Court cannot determine the degree of commonality among questions of law or fact in these proceedings when neither Barbara nor David have answered the operative complaints (NYSCEF 310 [“Memorandum in Opposition”] at 2, citing Siegel, NY Prac § 128 [6th ed 2024] [“There is no stated time limit on a motion to consolidate, but it can't as a rule be made before issue has been joined—the pleadings are all in—in the several actions affected because not until then can the court know whether the actions present common issues”]). While this is a sensible approach in principle, it is not an invariable rule (see Gibbs v Sokol, 216 AD 260, 262 [4th Dept 1926] [“Where the court can plainly see what the issues are to be, the reason for waiting for the pleadings disappears, and the order may be granted before the issues are fully framed”]; accord Casanave v Robbins, 262 AD 873, 873 [2d Dept 1941]; Lee v Schmeltzer, 229 AD 206, 209 [1st Dept 1930]).

Upon review of the operative complaints in both actions (NYSCEF 2 in the David Action,[] NYSCEF 270 in the instant action), it is apparent that the actions involve common issues of law and fact regarding the allegations that Barbara improperly diverted funds from Jobar Holding Corporation to herself and her family, principally David. Accordingly, the Court will exercise its discretion to consolidate the actions in order to “avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts” (Sokolow, Dunaud, Mercadier & Carreras LLP v Lacher, 299 AD2d 64, 73-74 [1st Dept 2002], citing CPLR 602 [internal quotation marks and other citations omitted]). (footnote omitted).

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