DECISION & ORDER In accordance with CPLR §2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and opposition to: (1) defendant LYFT, INC.’s (“Lyft”) motion (Seq. No. 4) seeking an order, pursuant to CPLR §§2001 or 5019(a), to vacate, recall, and modify this Court’s October 28, 2022 consolidation order (Seq. No. 1 & 2), to sever Index No. 806144/2022E and join the two actions for trial and discovery only, or, in the alternative, pursuant to CPLR §5015(a)(1), to vacate the October 28, 2022 decision and order upon the ground of excusable default and permit movant an opportunity to serve opposition papers on Mot. Seq. 1; and (2) plaintiff CELESTE MCCABE’s (“C. McCabe”) cross-motion (Seq. No. 4) seeking an order, pursuant to CPLR §3025(b), for leave to amend her verified complaint to add Lyft as a defendant and to deem the amended complaint served upon said defendant upon service of this motion. For the reasons outlined below, the motion is DENIED, and the cross-motion is GRANTED IN PART, to the extent of permitting C. McCabe to amend her complaint and serve it on Lyft. Procedural Background and Consolidation Order This action arises from a multi-vehicle accident that occurred on April 12, 2021, on the southbound Major Deegan Expressway in Bronx County, New York. C. McCabe and plaintiff MIGUEL ANGEL MCCABE (“M. McCabe”) were both passengers in a vehicle operated by FRANTZ SIDNEY (“Sidney”). Two other vehicles were allegedly involved in the accident, the first owned and operated by DAVID A. PHILLIPS (“Phillips”) and the second operated by WILMER RAFAEL VENTURA CALDERON (“Calderon”) and owned by LCN CAR, INC. (“LCN”; and, together with Calderon, the “Calderon Defendants”). On April 20, 2022, C. McCabe commenced an action under this index number by filing a summons and complaint against Sidney, Phillips, Calderon, and LCN. The Calderon Defendants interposed a joint answer with crossclaims on May 25, 2022. Phillips interposed an answer with crossclaims on August 31, 2022. Also on April 20, 2022, M. McCabe commenced a separate action by filing a summons and complaint under Index No. 806144/2022E, against Sidney, Phillips, Calderon, and LCN. Phillips interposed an answer with crossclaims on May 9, 2022. The Calderon Defendants interposed a joint answer with crossclaims on July 18, 2022. On June 23, 2022,1 M. McCabe filed a supplemental summons and amended complaint adding Lyft as a party defendant, alleging that Sidney was a hired Lyft driver at the time of the accident. The appearing defendants served amended answers. Lyft interposed an answer on October 14, 2022. After the amended complaint had been filed in the M. McCabe action, but before Lyft had answered, the Calderon Defendants moved to join the two actions for discovery and trial, based on common issues of law and fact, on July 20, 2022. The Calderon Defendants served the motion on Lyft by mail as an unrepresented defendant (NYSCEF Doc. 20). In a decision and order dated October 28, 2022, the undersigned justice granted the Calderon Defendants’ motion for joint trial and discovery without opposition. The decision also directed, in the interest of judicial economy, that the actions would be consolidated under a single index number with a single caption. The caption was amended accordingly as Celeste McCabe and Miguel Angel McCabe v. Frantz Sidney, David A. Phillips, Wilmer Rafael Ventura Calderon a/k/a Venturacalderon W.R., LCN Car Inc. and Lyft, Inc. Defendant Lyft’s Motion to Vacate and Modify the Consolidation Order At the outset, CPLR 602 draws little distinction between consolidation and joint trial, and movants often use the terms interchangeably. The difference lies in whether the actions are merged into one or whether they maintain separate, but linked, identities. In a joint trial, the combined actions retain their original index numbers, separate decisions or verdicts, and separate costs. Joined actions proceed with discovery together, filing mirrored stipulations and orders, but the plaintiffs in each action must file a separate Note of Issue and certificate of readiness for trial. Conversely, in an “organic” consolidation, the pending actions are merged into a single action to be disposed by a single decision or verdict, in the case of a jury trial, and a single judgment with one bill of costs; the new title is one which merges all the litigants into one group of plaintiffs and one group of defendants (Padilla v. Greyhound Lines, Inc., 29 A.D.2d 495 [1st Dept 1968]). For all future filings and motions, a consolidated action has one index number, one caption, and one Note of Issue. All of the pleadings are deemed to be consolidated, although this does not automatically change the causes of action each individual party has asserted against another. “The former defendants in the individual action all become co-defendants, creating new opportunities for amending the pleadings to assert additional claims, counterclaims and cross-claims among the newly conjoined parties” (see CPLR 602, Practice Commentary by Vincent C. Alexander, McKinney’s Cons. Laws of NY). Once the common-questions burden of CPLR 602 is met, it is in the court’s discretion to decide whether a consolidation or joint trial order is more appropriate (id.). Consolidation is generally favored in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right (Amcan Holdings, Inc. v. Torys LLP, 32 A.D.3d 337, 339 [1st Dept 2006], quoting Amtorg Trading Corp. v. Broadway & 56th St. Assoc., 191 A.D.2d 212, 213 [1st Dept 1993]). Allegations of prejudice to a substantial right must be specific and non-conclusory (In re N.Y.C. Asbestos Litig., 121 A.D.3d 230 [1st Dept 2014]), and the mere fact of a case being “somewhat delayed” by consolidation is not sufficient (Amtorg, supra at 213). Consolidation is common in motor-vehicle accident cases, where there is a clear occurrence or event from which all the plaintiffs’ alleged injuries arise, a common set of facts that require consistent judgments or verdicts on the parties’ respective liability, and often insurance coverage limits at play. Because full consolidation treats the parties as “one group of plaintiffs and one group of defendants,” a joint trial order is preferred where one party would improperly become both a plaintiff and defendant (see Padilla; Bass v. France, 418 N.Y.S.2d 43, 44 [1st Dept 1979]). Some courts have held that even this situation is not fatal to consolidation, as the complaints in one action could be converted to crossclaims in the consolidated action; however, “the situation would be more easily understood by the jury if the cases were jointly tried instead of being organically consolidated” (Smith v. Witteman Co., 10 A.D.2d 793 [4th Dept 1960]). Similarly, the First Department held in Padilla that the existence of a party who is a named defendant in two of the actions but not the third is a factor “which may tend to confusion in the case of a jury trial,” and therefore “the preservation of the separate actions and the pleadings therein will tend to a better understanding by a jury of the parties and issues in each case.” In the instant motion, Lyft argues that it was a mistake and error to consolidate the actions under a single caption, because Lyft was only a defendant in the second action and C. McCabe never asserted any claims against Lyft. However, Lyft simply being in the “group of defendants” in the consolidated caption does not automatically suggest every plaintiff has asserted claims against them. The complaint of C. McCabe and amended complaint of M. McCabe still stand in their original form, asserting their own causes of action against each defendant, even though they are now deemed consolidated. Consolidation would only be an improper exercise of discretion if it placed Lyft in a “dual role” on both the plaintiff and defendant side (Bass, supra at 850). At most, ordering a consolidation rather than joint trial in this situation could result in jury confusion (Padilla, supra at 497-498), but steps can be taken to minimize that confusion with instructions, such as “regularly remind[ing] the jury that a particular line of testimony applied to one plaintiff or the other” (In re N.Y.C. Asbestos Litig., supra at 245). This Court does not agree with Lyft that it was an error to fully consolidate the actions. Although there was some potential for jury confusion, it could be cured with instructions clarifying that Lyft was only being sued by M. McCabe. Furthermore, that source of confusion is no longer an issue, because C. McCabe’s amended complaint gives both plaintiffs an identical group of defendants. In the alternative, Lyft seeks to vacate the October 28, 2022 order on the ground of excusable default, pursuant to CPLR 5015(a)(1). The consolidation order was granted without opposition from Lyft. Lyft argues that they were unable to submit opposition papers, because on the date the motion was filed, Lyft had just been added as a defendant in the M. McCabe action, and they had not yet retained counsel. Although the Calderon Defendants did serve a notice of motion and affirmation in support on Lyft by mail, the motion was fully submitted before Lyft’s counsel had even interposed an answer on their behalf. To vacate a judgment based on excusable default, the movant must show both a reasonable excuse for the default and a meritorious defense (Natalya M. v. Chanan M., 170 A.D.3d 587 [1st Dept 2019]). Here, Lyft presents a detailed and reasonable excuse for their default in opposing the Calderon Defendants’ motion. The timing of the motion was such that Lyft had not even been served with M. McCabe’s summons and amended complaint when the Calderon Defendants served notice of the motion (NYSCEF Doc. 29, Index No. 806144/2022E). The motion was fully briefed and submitted before Lyft had joined by filing an answer on October 14, 2022. Thus, Lyft’s counsel did not have an adequate opportunity to respond to the motion. Despite their showing of a reasonable excuse, Lyft does not meet their second burden of offering a meritorious argument to vacate the order. Lyft repeatedly concedes that there are common issues of law and fact, and they do not oppose the Calderon Defendants’ underlying motion to join the two actions for trial and discovery. Instead, Lyft’s only opposition is to the Court’s discretionary decision to order a full consolidation rather than joint trial, treating Lyft broadly as a co-defendant in the consolidated action despite one of the plaintiffs having no direct claims against them. An amended caption does not change the individual claims or crossclaims within the action, but it could lead to jury confusion as held in Padilla. Again, however, this issue is resolved by C. McCabe’s cross-motion to amend the complaint and assert her own claims against Lyft. Unlike in Padilla, Lyft does not have a dual role as plaintiff and defendant, and any potential jury confusion resulting from one plaintiff asserting no claims against them is rendered moot by the amended complaint. Any further potential for confusion could be cured with instructions, as in any trial with multiple plaintiffs and defendants. Accordingly, Lyft’s motion is DENIED. Plaintiff Celeste McCabe’s Cross-Motion to Amend the Complaint C. McCabe’s cross-motion seeks leave to amend her complaint to add claims against Lyft, alleging they are vicariously liable for negligence on the part of driver Sidney. Under CPLR 3025(b), a party may amend its pleadings at any time by permission of the court. Leave to amend a pleading shall be “freely given absent prejudice or surprise so long as the proposed claims are not palpably insufficient or devoid of merit” (Brummer v. Wey, 187 A.D.3d 566 [1st Dept 2020]). Mere lateness is not a barrier to amend a pleading; it must be coupled with “significant prejudice to the other side” resulting from the delay (Norwood v. City of N.Y., 203 A.D.2d 147, 148 [1st Dept 1994]). C. McCabe’s proposed amendment to assert claims against Lyft in her pre-consolidation complaint is not palpably insufficient or devoid of merit. The amendment essentially conforms her pleadings to her co-plaintiff’s in the consolidated action. Lyft’s opposition to the cross-motion is unconvincing. There has been no “exorbitant delay” in seeking leave to amend, in contrast with cases where the new claims or defendants were time-barred (see Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 24-25 [1st Dept 2003]; Young v. A. Holly Patterson Geriatric Ctr., 17 A.D.3d 667 [2d Dept 2005]). The accident having occurred on April 12, 2021, C. McCabe is still within the three-year statute of limitations period for a personal injury claim in CPLR 214(5). She could have brought the same cause of action against Lyft under a new index number, or as an amendment to her original complaint if this action had never been consolidated. There is no reason to bar her from doing so here. Lyft’s contention that the amended complaint will cause undue delay if the actions remain consolidated is not sufficiently supported by a showing of significant prejudice. The mere fact there will be some delay for additional discovery is not reason enough to deny the cross-motion or to sever the actions from each other (see Amtorg, supra at 213). Unlike the “markedly different procedural stages” of Abrams v. Port Auth. Trans-Hudson Corp., 1 A.D.3d 118, 119 (1st Dept 2003), the discovery stage is still ongoing and neither action has been placed on the trial calendar. Lyft’s argument is also inconsistent with the fact, as they restate in their motion reply/cross-motion opposition papers, they support joining both McCabe actions for discovery and trial. Even if the plaintiffs maintained separate captions and index numbers, a joint trial would have the same effect of “delaying” the two actions from being placed on the trial calendar until all parties have completed discovery and filed their separate Notes of Issue. For these reasons, that part of the cross-motion seeking leave to amend the complaint is GRANTED. Additionally, Lyft opposes the part of the cross-motion seeking to “deem the Proposed Amended Complaint served upon all defendants…upon service of this motion.” In their opposition, Lyft requests that a supplemental summons and amended complaint be served upon the defendant in accordance with the CPLR, to preserve Lyft’s jurisdictional defenses and afford time to respond. C. McCabe did not submit a reply and did not cite any authority for the relief requested. Accordingly, they are required to upload the newly amended pleadings to NYSCEF and to serve them on Defendants as directed below. It is hereby: ORDERED that defendant LYFT, INC.’s motion (Seq. No. 4) seeking an order, pursuant to CPLR §§2001 or 5019(a), to vacate, recall, and modify this Court’s October 28, 2022 consolidation order, to sever Index No. 806144/2022E and join the two actions for trial and discovery only, or, in the alternative, pursuant to CPLR §5015(a)(1), to vacate the October 28, 2022 decision and order upon the ground of excusable default is DENIED; and it is further ORDERED that that part of plaintiff CELESTE MCCABE’s cross-motion seeking an order, pursuant to CPLR 3025(b), for leave to amend her verified complaint to add claims against LYFT, INC., is GRANTED; and it is further ORDERED that that part of plaintiff CELESTE MCCABE’s cross-motion seeking an order to deem the amended complaint served upon service of the cross-motion is DENIED; and it is further ORDERED that plaintiff CELESTE MCCABE shall e-file a Supplemental Summons and Amended Complaint on NYSCEF by November 1, 2023; and it is further ORDERED that plaintiff CELESTE MCCABE shall serve the amended pleadings on LYFT, INC. in accordance with CPLR 311 and/or BCL §306 within 60 days of the upload of e-filing of the amending pleadings and shall promptly thereafter file an affidavit of service. The defendants shall serve answers in accordance with the requirements of the CPLR. The Clerk shall mark this motion (Seq No. 4) decided in all court records. This constitutes the decision and order of the Court. 1. CHECK ONE CASE DISPOSED IN ITS ENTIRETY X CASE STILL ACTIVE 2. MOTION IS CROSS MOTION IS X GRANTED X DENIED GRANTED IN PART OTHER GRANTED DENIED X GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE SETTLE ORDER SUBMIT ORDER SCHEDULE APPEARANCE FIDUCIARY APPOINTMENT REFEREE APPOINTMENT Dated: October 13, 2023
