Edson v. Marrtnan
| Decision Date | 03 May 2019 |
| Docket Number | Index 18-618460 |
| Citation | 2019 NY Slip Op 34259 (U) |
| Parties | LISA EDSON and EVANS EDSON, individually and on behalf of the ESTATE OF LEWIS L. EDSON, a/k/a LEWIS LEFFERTS EDSON, Plaintiffs), v. JOAN MARRTNAN, Defendant |
| Court | New York Supreme Court |
Upon the reading and filing of the following in this matter: (1) Motion brought by Order to Show Cause, by plaintiffs, granted October 2, 2018, and supporting papers; (2) Affirmation in Opposition, by defendant, filed February 20, 2019, and supporting papers; (3) Reply by plaintiffs, filed February 25, 2019; (4) Notice of Motion, by defendant, filed November 15, 2018, and supporting papers; (5) Notice of Cross-Motion by plaintiffs, filed April 2, 2019, and supporting papers; (6) Affirmation in Opposition, by defendant, filed April 22, 2019; (7) Notice of Motion, by defendant, filed April 10, 2019, and supporting papers; it is ORDERED that plaintiffs' motion (seq. #004)[1] pursuant to CPLR § 602(a), for an order consolidating the instant action with the action entitled Lisa Edson and Evans Edson et al - against -Matthew Marrinan and Channing Edson Marrinan, and appearing under index number 7803/2016 is granted to the extent that the actions are joined for purposes of joint discovery and joint trial, and is otherwise denied; and it is further
ORDERED that plaintiffs' motion (seq. #001) for an order enjoining defendant from engaging in certain activities described infra is granted to the limited extent indicated herein, and is otherwise denied; and it is further
ORDERED that defendant's motion (seq. # 005) seeking a stay of these proceedings is granted to the extent that this matter is stayed immediately following the conference currently scheduled for June 4, 2019 until after the disposition of the matter currently pending before the Honorable Theresa Whelan, Surrogate entitled In the Matter of the Estate of Lewis L. Edson a/k/a Lewis Lefferts Edson, and appearing under file number 2013-2792/E/F/G, except to the extent that the court may entertain an application for relief from any violation of the preliminary injunction granted herein; and it is further
ORDERED that defendant's motion (seq. # 002) for an order disqualifying Anthony H. Palumbo, Esq. and his firm The Law Firm of Palumbo & Associates, P.C. from representing the plaintiffs in this action is denied, without prejudice; and it is further
ORDERED that the parties, or their attorneys-of-record if represented by counsel, shall attend a previously scheduled conference on June 4, 2019 at 9:30am before the undersigned.
This action arises out of an ongoing and unfortunate, intra-familial dispute between the plaintiffs[2], Lisa Edson and Evans Edson and their sister Channing Edson Marrinan, who is a defendant in a related action, over the formers' allegedly improper administration of their late father's estate. Lisa and Evans commenced the instant action against Joan Marrinan, Channing's mother-in-law, and a related action against Channing and Channing's husband, Matthew Marrinan, entitled Lisa Edson and Evans Edson et al - against - Matthew Marrinan and Channing Edson Marrinan, and bearing index number 7803/2016. Although the complaints in both actions are not identical, each essentially alleges that the defendants Joan and Matthew have defamed and disparaged plaintiffs, and continue to do so, with malicious internet posts on various internet platforms. Plaintiffs claim that as a result of these allegedly defamatory and disparaging posts, they have suffered emotional distress and have been damaged by the defendants, and that the defendants have tortiously interfered with their management of an asset of Lewis Edson's Estate, a business named Christmas Tree Farm Inc., which is commonly known as "Santa's Christmas Tree Farm." The matter has quickly escalated, resulting in substantial motion practice.
Plaintiffs now move for an order in this action granting a preliminary injunction preventing defendant from engaging in certain activities described in this decision and for an order consolidating this action with the above mentioned related action. Defendant, who is self-represented, moves for an order disqualifying plaintiffs' attorney Anthony Palumbo, Esq., and his firm from representing them, and staying these proceedings until after the disposition of the Surrogate's court matter. Each motion is discussed in turn.
Turning first to plaintiffs' motion for an order consolidating the instant action with the related action, CPLR § 602(a) provides that consolidation among actions should be granted where there are common questions of law and/or fact absent a showing of prejudice to a substantial right by a party opposing the motion (see also ObokuvNew York City Transit Auth., 141 A.D.3d 708, 35 N.Y.S.3d 710 [2d Dept 2016]; Cieza v 20th Avenue Realty Inc., 109 A.D.3d 506, 970 N.Y.S.2d 311 [2d Dept 2013]). Whether to grant the relief requested in a motion to consolidate actions, made pursuant to CPLR 602(a), rests within the sound discretion of the trial court (see Alizio v Perpignano, 78 A.D.3d 1087, 912 N.Y.S.2d 132 [2d Dept 2010]; RCN Constr. Corp. v Fleet Bank, N.A., 34 A.D.3d 776, 825 N.Y.S.2d 140 [2d Dept 2006]). Consolidation or a joint trial is appropriate "where it will 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" (Horn Constr. Co. v City of New York, 100 A.D.2d 824, 825, 474 N.Y.S.2d 763 [1st Dept 1984]). Consolidation gives rise to a new action that displaces the actions affected thereby (Pigott v Field, 10 A.D.2d 99, 101, 197 A.D.2d 648 [1st Dept I960]; see Kelley v Galina-Bouquet, Inc., 155 A.D.2d 96, 552 N.Y.S.2d 305 [1st Dept 1990]).
Where, as here, common questions of law and fact exist and none of the parties would be appreciably prejudiced, if at all, by consolidating the actions, consolidation would ordinarily be appropriate.[3] However, notwithstanding the fact that the defendant and her son each allegedly spend substantial amounts of time assailing their family members on the internet, it cannot be said at this time that the conduct by Joan Marrinan and Matthew Marrinan are so similar or concerted as to warrant consolidation of the actions against them. In any event, particularly where one defendant is self represented and where the other is represented by counsel, and where litigation has already proceeded separately in each action over the course of years, the court exercises its discretion to join these actions for discovery and trial rather than to consolidate them.
The court next turns to plaintiffs' motion for a preliminary injunction against defendant. Plaintiffs seek an order, in pertinent part:
It is well settled that a preliminary injunction is a drastic remedy which will not be granted unless the movant establishes "a clear right thereto . . . under the law and the undisputed facts upon the moving papers" (Abinanti v. Pascale, 41 A.D.3d 395 [2d Dept. 2007] [internal quotations omitted]). The party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable injury in the event the injunctive relief is denied and that a balancing of the equities favors the granting of the injunction (Aetna v. Capasso, 75 N.Y.2d 860 [1990]; W.T. Grant Co., v. Sgroi, 52 N.Y.2d 496 [1981]). Where the moving party has an adequate remedy at law by "which his or her rights can be protected and properly conserved,"...
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