Ruiz v. Hirner

• Decision Date: 12 June 1978
• Docket Number: No. 1,No. 2,1,2
• Parties: Armando RUIZ, Respondent, v. Frank HIRNER et al., Defendants. (Action). Armando RUIZ, Respondent, v. Ann JENKINS, Defendant, and Raymond Marte et al., Appellants. (Action).
• Court: New York Supreme Court — Appellate Division

Page 770

405 N.Y.S.2d 770

63 A.D.2d 979

Armando RUIZ, Respondent, v. Frank HIRNER et al., Defendants. (Action No. 1).

Armando RUIZ, Respondent, v. Ann JENKINS, Defendant, and Raymond Marte et al., Appellants. (Action No. 2).

Supreme Court, Appellate Division,Second Department.

June 12, 1978.

Shapiro, Shiff, Beilly, Castleman & Fox, New York City (Abraham L. Shapiro and Gerald Richman, New York City, of counsel), for appellants.

Edward V. Whiting, Mineola (Crowe, McCoy, Agoglia, Fogarty & Zweibel, P.C., Morris Zweibel, Mineola, of counsel), for respondent.

Before HOPKINS, J. P., and MARTUSCELLO, DAMIANI and RABIN, JJ.

MEMORANDUM BY THE COURT.

In two negligence actions, each to recover damages for personal injuries, defendants Marte (Action No. 2) appeal from an order of the Supreme Court, Queens County, entered November 2, 1977, which granted plaintiff's motion to "consolidate" the two actions, and directed a joint trial "in the interests of justice".

Order modified by deleting therefrom the words "motion is granted and" and substituting therefor the words "motion is granted to the extent that". As so modified, order affirmed, without costs or disbursements.

This appeal involves two personal injury actions resulting from separate car accidents which occurred 25 days apart. In both accidents the plaintiff's vehicle was struck in the rear causing injuries to his back and neck. He initially commenced one action against all of the defendants herein, distinguishing between the two accidents in separate causes of action. Upon motion of defendants Hirner, the action was severed into separate actions and the plaintiff was directed to serve separate amended summonses and complaints. The plaintiff neither moved to reargue the order granting the severance nor appealed therefrom. Instead he fully complied with the order.

More than two years later the plaintiff moved to consolidate the two actions. The application was supported by several medical affidavits to the general effect that the injuries sustained in the second accident were superimposed upon the injuries sustained in the first accident. There was considerable ambiguity as to the extent that the injuries were exacerbated by the second accident. Although the Justice who had previously directed the severance was apparently available, the application for consolidation was granted by another Justice, contrary to the clear dictates of CPLR 2221 which required the transfer of the motion to the first...