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How to Defend Against a Consolidation Motion

Many times in multi vehicle car accidents cases a defendant will attempt to consolidate several plaintiff lawsuits into a signal case.  Under certain circumstances a plaintiff will want to oppose a consolidation to keep their lawsuit separate from the other pending personal injury lawsuits.

The most common reason to oppose a consolidation motion is in a situation where the defendant is trying to consolidate your client’s case with a plaintiff who has sued in a different venue.  If your client resides and has filed suit in a venue which is historically more favorable to plaintiffs it may be wise to oppose the consolidation motion and attempt to keep the case in the venue where you filed the initial lawsuit.

The law tends to favor the consolidation of cases arising out of the same multi-car collision thus making your job to oppose the motion more difficult.  The most important factor when determining whether a Court will consolidate is the date in which you filed your complaint.  If your complaint was filed prior to filing of the other lawsuit in most cases the Court will not consolidate your case and change your venue.  The plaintiff who is first to file almost always is able to pick and maintain their venue.  Other plaintiffs may be consolidated under your index number, but you will be able to maintain the venue that you had originally picked to file your lawsuit.

You could also argue that the defendant has failed to provide a legally sufficient submission to support a motion to change venue.  Under CPLR 510(3) the moving defendant bears the burden to demonstrate that the change of venue will convenience material witnesses.  This showing must include the identity of the proposed witness, manner in which the original venue would inconvenience the witness, if the witness has been contacted and is willing to testify, the nature of the witnesses testimony and the manner in which the anticipated testimony is material to the issue in the case.  Unless the defendant has fulfilled their burden to establish the above showing the defendant will not be entitled to a change of venue pursuant to CPLR 510(3).  Until the defendant has made a proper showing the plaintiff is under no obligation to make any showing that the county originally designated is in any way preferable to the one which the change is sought.

The plaintiff may also argue that consolidation is inappropriate because there are differences in the question of law between the two cases.  If the plaintiff has sued different parties than the case which the defendant is seeking to consolidate or if there are different theories of liability.  For example if there is a multi car accident and your plaintiff’s vehicle was impacted by serval vehicles which are different from the cars being sued in the case which the defendant is attempting to consolidate, you may have an argument that there is no common question of law and therefore consolidation would be inappropriate.

Another possible argument could be that the consolidation would prejudice a substantial right of your plaintiff.  Most commonly this can be proven by showing that the two cases are in different procedural stages.

Though an opposition to a properly placed motion for consolidation and change of venue can be very tricky, the motion can be overcome with appropriate research and factual analysis.