On October 8, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Harkins v. Stern, 2024 NY Slip Op. 33599(U), denying a motion for consolidation because of overlapping discovery where there were insufficiently similar questions of law or fact, explaining:
It is well settled that when two cases represent common questions of law or fact then there should be a consolidation. A party objecting to the consolidation has the burden of demonstrating prejudice which harms a substantial right.
The two actions do not concern common questions of law and fact at all. The Kings County action has been brought by the plaintiff alleging the defendant improperly utilized funds from Golden Hill for his own personal benefit. The Nassau action concerns a lawsuit about an unpaid note. Other than the fact the plaintiff and defendant in this action are defendants in the Nassau action they are not similar in any way.
The defendant asserts that the two cases are inextricably intertwined and interrelated because the documents the defendant seeks in the Kings County action may serve as defenses in the Nassau action. Thus, the defendant argues that no such payment is owed in the Nassau action and discovery sought in this action can substantiate that defense in the Nassau action. Even if that is true there is still no connection between the two actions. The defendant seeks to consolidate the actions arguing the same discovery will be necessary in both cases. However, that does not mean the two cases share common questions of law or fact. Indeed, the defendant has not explained why the discovery sought to defend the Nassau action cannot be obtained· in the Nassau action. This is particularly true since the defenses alleged in the Nassau action are more direct and involve the single issue whether any further payments based upon the note are required. The Kings County action is more fact specific, more involved and requires a greater degree of discovery.
Furthermore, the issues in this action are not identical to the defenses in the Nassau action. There may be some similarity between the defenses in both actions, however, they are far from identical and do not really concern common questions of law or fact.
(Internal citations omitted).