On February 22, 2023, the Second Department issued a decision in HSBC Bank USA, N.A. v. Francis, 2023 NY Slip Op 00992, holding that an untimely action could not be consolidated with, and made timely by, an earlier timely action, explaining:
On her appeal, the defendant challenges, among other things, the grant of that branch of the plaintiff’s cross-motion which was to consolidate the 2008 action and the 2017 action, and the denial of that branch of her motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint in the 2017 action insofar as asserted against her as time-barred.
A party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the statute of limitations. On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.
An action to foreclose a mortgage is subject to a six-year statute of limitations. With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due. However, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt.
Here, on her motion, the defendant demonstrated that the 2008 action called due the entire debt and that the 2017 action was therefore untimely under the applicable six-year statute of limitations. Thus, with the defendant having satisfied her initial burden of proof as to the untimeliness of the 2017 action, the burden shifted to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.
On its cross-motion, inter alia, to consolidate, the plaintiff made an argument to the effect that the statute of limitations defense failed once the 2017 action was consolidated with the timely 2008 action. The Supreme Court found this argument persuasive, as it granted that branch of the plaintiff’s cross-motion which was to consolidate and denied the defendant’s motion as moot, in light of the consolidation.
CPLR 602(a) provides that 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.
Consolidation has been described as the merging or fusing of two or more actions into one action. The consolidated action has one caption, with one group of plaintiffs against one group of defendants, and results in one verdict or decision and one judgment with one bill of costs. The former defendants in the actions all become codefendants together, with the possibility of amended pleadings asserting additional claims. By contrast, the joinder of two or more actions under the same enabling statute, CPLR 602(a), continues the separateness of each of the actions presenting common questions of law or fact, allowing for joint proceedings but separate verdicts and judgments. Consolidation or joint trials are favored by the courts in serving the interests of justice and judicial economy.
Where common questions of fact or law exist, a motion pursuant to CPLR 602(a) for consolidation or joinder should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion. Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts. Denial of a motion to consolidate or for a joint trial may be warranted where common questions of law or fact are lacking, where the actions involve dissimilar issues or disparate legal theories, or where a joint trial would substantially prejudice an opposing party or pose a risk of confusing the jury or rendering the litigation unwieldy. Moreover, the mere commonality of fact or law does not, ipso facto, require that consolidation or joinder of related actions always occur.
The Supreme Court’s discretion to consolidate or join actions is not unfettered, as it is reviewable on appeal to the Appellate Division under an improvident exercise of discretion standard.
Turning to the case at bar, consolidation is inapt. Granted, both actions are to foreclose on the same mortgage securing the same debt owed by the same defendant. However, in our view, a precondition for merging two or more actions is that each action should itself be viable, meaning that neither is confronted with a pending—and apparently meritorious—motion to dismiss. Once the defendant here met her burden of establishing, prima facie, that the time in which to commence the 2017 action had expired, it became the plaintiff’s burden to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period. The plaintiff could not meet that shifted burden by merely asserting that the 2017 action will become timely once it is merged with the timely 2008 action. The purpose of consolidation under CPLR 602(a) is not to provide a party with a procedural end run around a legal defense applicable to one of the actions. In our opinion, in such instances, judicial discretion should not be used to cure the untimeliness of one action by tethering it to a related timely action. We hold, as an issue of apparent first impression that, in this case, the Supreme Court improvidently exercised its discretion in granting consolidation and that, in general, consolidation should be denied where one of the cases to be consolidated is subject to a meritorious motion to dismiss.
Appellate authority on this issue, although limited to actions where dismissals were granted so as to render the issue of consolidation academic, supports our conclusion. In Giordano v Valhalla Heating Plant (32 AD3d 897) (hereinafter Valhalla), this Court affirmed an order granting the defendant’s motion to dismiss the complaint as time-barred and denying the plaintiff’s cross-motion for leave to amend the caption and the complaint, and to consolidate the action with other actions. In Valhalla, this Court held that the Supreme Court properly granted the defendant’s motion to dismiss the complaint, and properly denied the plaintiff’s cross motion. In support of its determination, this Court cited to a case decided therewith, Giordano v Westchester County Dept. of Parks, Recreation & Conservation (32 AD3d 897) (hereinafter Westchester County). In Westchester County, this Court likewise affirmed an order granting the defendant’s motion to dismiss the complaint as time-barred and denying the plaintiff’s cross-motion for leave to amend the caption and the complaint, and to consolidate the action with other actions. This Court explained why the Supreme Court properly granted the defendant’s motion to dismiss the complaint as time-barred, and further held that the plaintiff’s remaining contentions either had been rendered academic or were without merit.
This Court took similar action in Maietta v Penzer (21 AD3d 1009). In Maietta, this Court upheld the grant of the motion of the defendant Raymond Reich to dismiss the complaint insofar as asserted against him and the denial of the plaintiffs’ cross-motion to consolidate the action with another action. This Court held that the Supreme Court properly directed dismissal of the complaint insofar as asserted against Reich as time-barred. Additionally, it offered this analysis: whether an action was timely commenced as against Reich in Nassau County for the same relief cannot be determined from the instant record. Further, because it may entail both factual and discretionary determinations, it is an issue best resolved by the Nassau County courts. Thus, the plaintiffs’ cross motion to consolidate this action with the Nassau County action was properly denied. Irrespective of this Court’s analysis on the issue of consolidation in Maietta, the result reached there—affirming the grant of statute of limitations dismissal and the denial of consolidation—supports the conclusion we reach here.
(Internal quotations and citations omitted) (emphasis added).