Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on June 6, 2019, under motion sequence number five, by plaintiff Maria Pinto-Bedoya (hereinafter Pinto-Bedoya) for an order pursuant to CPLR 602 joining for trial the instant action with Antonio Picone Jr.’s (hereinafter Picone Jr.) thirdparty complaint, another claim for damages in fraud and legal malpractice. The motion is unopposed. Notice of motion Affirmation in support Exhibits A-E DECISION & ORDER BACKGROUND On June 24, 2008, Downey Savings and Loan Association (hereinafter Downey) commenced a mortgage foreclosure action bearing Index Number 18104/2008 by filing a summons and verified complaint with the Kings County Clerk’s office (hereinafter KCCO) against, among others, Picone Jr. On August 21, 2008 Picone Jr. filed a verified answer to Downey’s complaint. On September 25, 2008, Picone Jr. commenced a third-party action bearing Index Number 75823/2008 seeking damages for legal malpractice and fraud against, among others, defendants Farad Yacoob and Nadia Yacoob (hereinafter the Yacoobs), and Jasmine O. Edwards (hereinafter Edwards). By verified answer filed on December 15, 2008, thirdparty defendant Edwards joined issue. By joint verified answer dated December 15, 2008, the Yacoobs joined issue on Picone Jr.’s third party complaint. On June 30, 2008, Downey commenced another foreclosure action bearing Index Number 18956/2008 by filing a summons and verified complaint with the KCCO against, among others, Pinto-Bedoya. On August 21, 2008, Pinto-Bedoya filed a verified answer to Downey’s complaint. On September 25, 2008, Pinto-Bedoya commenced a third-party action bearing Index Number 75822/2008 seeking damages for legal malpractice and fraud against, among others, the Yacoobs, and Edwards. By joint verified answer dated December 11, 2008, the Yacoobs joined issue. On July 11, 2016, this court granted Pinto-Bedoya’s motion to sever her third-party complaint from Downey’s main action. The Pinto-Bedoya’s complaint bearing Index Number 75822/2008, has alleged the following salient facts. At some time before January 12, 2006, the Yacoobs approached Pinto-Bedoya to enter into a transaction for the purchase of real property located at 2052 East 53 Place, Brooklyn, NY (hereinafter subject property). The Yacoobs made the following representations to Pinto-Bedoya: that Pinto-Bedoya’s credit history would be utilized to obtain a mortgage for the purchase of the subject property, that she would be both the mortgagor and fee simple owner of the subject property, that the subject property would be purchased at a favorable price and then sold a year later, and that the subject property would be operated and managed by defendant Y & S during pendency of plaintiff’s ownership. Additionally, the Yacoobs informed Pinto-Bedoya that they would provide an attorney for plaintiff for the closing of the subject property. On January 12, 2006, the Yacoobs informed Pinto-Bedoya that Edwards would be that attorney. At the closing, the Yacoobs and Edwards compelled her to sign a flurry of documents that included, a note and mortgage on the subject property in the sum of $428,000.000, a second note and second mortgage in the sum of $200,000.00, a powers of attorney, and a deed transferring the subject property over to the defendant Y & S. Through the actions of the defendant acting in concert, plaintiff was defrauded such that she was left solely with the mortgage debts and without ownership of the subject property or anything else. Picone Jr.’s complaint bearing Index Number 75823/2008 alleges conduct by the defendants that are nearly identical to those alleged in Pinto-Bedoya’s complaint. The subject property of Picone Jr.’s action is 62 Rockaway Avenue, Brooklyn, New York. The representations made to Picone Jr. were the same made to Pinto-Bedoya. The Yacoobs assigned Edwards as Picone Jr.’s counsel to represent him at the closing, the same way that they did with Pinto-Bedoya. Picone was also provided with a flurry of documents to sign which, in effect, transferred all ownership rights of the subject property to Y & S while Picone Jr. remained liable for the mortgage debts. Picone Jr. was allegedly defrauded in the exact same manner such that he too was left with the mortgage debts for the subject property and without the property or anything else. MOTION PAPERS Pinto-Bedoya’s motion papers consist of an affirmation of counsel and five exhibits labeled A though E. Exhibit A is the third-party complaint of Maria Pinto- Bedoya. Exhibit B is the Yacoobs’ notice of appearance and answer to Pinto-Bedoya’s action. Exhibit C is the third-party complaint commenced by Picone Jr. Exhibit D is the Yacoobs’ notice of appearance and answer to Picone Jr.’s action. Exhibit E is a court order demanding compliance conference/discovery to be completed by July 2, 2019, and post-depositions demands to be completed by August 23, 2019. There was no opposition to the motion. LAW AND APPLICATION By the instant motion, Pinto-Bedoya now seeks an order pursuant to CPLR 602 joining Pinto-Bedoya’s action with Picone Jr’s action. The two complaints show a common scheme by the same defendants to defraud two different plaintiffs in the exact same way. CPLR 602 provides as follows: Consolidation (a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court. “A motion to consolidate two or more actions rests within the sound discretion of the trial court” (Rhoe v. Reid, 166 AD3d 919 [2nd Dept 2018] quoting, American Home Mtge. Servicing, Inc. v. Sharrocks, 92 AD3d 620, 622 [2nd Dept 2012]). A motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion (Rhoe v. Reid, 166 AD3d 919 [2nd Dept 2018]). A trial court has “wide discretion” to order or deny a joint trial. In exercising that discretion, the controlling principle is that “the interests of justice and judicial economy are better served by joint trials wherever possible” (Hanover Ins. Group v. Mezansky, 105 AD3d 1000 [2nd Dept 2013]). Plaintiffs in both actions commenced third-party complaints against the Yacoobs, Spaulding and Y & S in fraud, and Edwards in legal malpractice. Plaintiffs’ allegations in their respective complaints show a common scheme to defraud them through a real estate transaction. Inasmuch as fraud involves an element of scienter, the defendants’ alleged conduct in their separate transactions with each of the plaintiffs is probative on the common issue of their alleged intent. Here, both actions arise from similar transaction, concern the same defendants, and involve common questions of law and fact (Moses v. B & E Lorge Family Trust, 147 AD3d 1043 [2nd Dept 2017] citing, Scotto v. Kodsi, 102 AD3d 947, 948 [2nd Dept 2013]). Thus, consolidation would serve the interest of justice and judicial economy, and avoid the potential for inconsistent verdicts (Moses v. B & E Lorge Family Trust, 147 AD3d 1043 [2nd Dept 2017] citing, Lecorps v. Bromberg, 127 AD3d 931, 932 [2nd Dept 2015]). Furthermore, there is nothing to indicate that joining both actions will prejudice anyone as there is no opposition to the motion. Accordingly, in the interest of justice and judicial economy the two actions should be tried jointly. CONCLUSION The motion of plaintiff Maria Pinto-Bedoya for an order pursuant to CPLR 602 joining for trial the instant action bearing Index Number 75822/2008 with the action of Antonio Picone Jr. bearing Index Number 75823/2008 is granted. The foregoing constitutes the decision and order of this court. *Researched and drafted with the assistance of Sabino A. Vargas, rising 2L at Roger Williams University School of Law
