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On Jan. 24, 2002, the Administrative Board of the Judicial Conference of the Uniform Court System adopted Uniform Rule for the New York State Trial Courts 202.69, which established a formal procedure for coordinating multiple actions pending in different judicial districts before a single state court judge, similar to the multidistrict litigation procedure in the federal courts prescribed by 28 U.S.C. � 1407. Coordination is the joinder of two or more actions having a common question of fact or law pending in different districts solely for pre-trial purposes. The joinder generally begins before or during discovery and continues until discovery has been completed and any dispositive motions are decided; the individual actions are then returned to their original venues for trial unless the parties stipulate otherwise. Consolidation pursuant to CPLR 602, in contrast, unifies the cases for all purposes, including trial, and, if necessary, changes the venue of any affected cases. ( See 124 Siegel’s Prac. Rev. 1 (June 2002)). Joint trial, like consolidation, “puts two or more actions together for trial, but the actions maintain their separate identities.” David Siegel, “NEW YORK PRACTICE” � 127 (3d ed. 1999). Over the past several years, coordination has been used frequently in other states as a means of promoting judicial efficiency and economy by providing unified management of cases. While the main purpose of Rule 202.69 was to provide a formal mechanism for efficiently handling the growing number of mass tort cases, ( see Defense News), 69 Def. Couns. J. 136 (April 2002), coordination applies to all categories of cases and can be extremely useful in a wide variety of commercial actions. Coordination enables parties to manage cases effectively, minimize discovery costs, share responsibility for particular tasks and reduce the risk of inconsistent rulings. It also allows a party to separate its action for trial and remain responsible for proving its own case or defense. ( See Jolly v. Eli Lilly & Co., 751 P.2d 923, 937 n.19 (Cal. 1988).) In New York, a Litigation Coordinating Panel consisting of one Supreme Court justice from each of the four Appellate Divisions was created to determine whether coordination is appropriate in any given case. ( See Rule 202.69(b)(1)). Justice Helen E. Freedman of New York County, the panel’s presiding justice, represents the 1st Department, Justice Joseph J. Maltese of Richmond County represents the 2nd Department, Justice E. Michael Kavanagh of Ulster County represents the 3rd Department and Justice Raymond E. Cornelius of Monroe County represents the 4th Department on the current panel. Pablo Rivera is the Clerk of the panel and is located in Room 148 in the New York County Courthouse. Rule 202.69(b)(3) identifies the factors for the panel to consider in determining whether to direct coordination. Interim procedural rules establishing the means by which coordination could be accomplished were promulgated by the panel on May 29, 2002. According to Rivera, the panel received minimal comment from the bar on the interim rules. The panel promulgated permanent procedural rules (the Procedural Rules) which became effective on June 3, 2003. Although Rule 202.69 has been in effect for nearly 1 1/2 years, many practitioners are still unaware of the panel’s existence or that coordination of New York state court actions is possible. To date, only eight applications for coordination have been made to the panel: 7 in 2002 and 1 in 2003. Justice Freedman and Rivera believe that there have been few applications made to the panel due primarily to two misconceptions among the bar: first, that coordination under Rule 202.69 is a substitute for consolidation or joint trial under CPLR 602; and, second, that coordination is limited to cases involving mass tort claims. To increase the bar’s awareness of the availability of coordination, the New York State Court Web site was recently updated to include a special link to information concerning the panel, coordination and the Procedural Rules. SEEKING COORDINATION The issue of coordination can be raised three ways: (1) the justice presiding over one or more related actions or an administrative judge can raise the issue by submitting a letter application to the panel; (2) the panel can sua sponte issue an order requiring that all parties to related actions show cause why coordination should not be directed; or (3) a party in one or more related actions can apply for an order of coordination by filing a motion or, where all parties to the affected actions consent to coordination, by filing a letter application and a joint stipulation. See Procedural Rules B(2)-B(4). Seven of the eight instances where coordination has been considered by the panel were presented to the panel by one or more of the parties involved. In the eighth instance, a letter application was made by a justice presiding over one of five potentially affected actions. A party seeking coordination can move by notice or order to show cause. The motion must be made under the caption of one of the affected actions and made returnable before the panel. An application for coordination must be supported by an affidavit and served upon all parties and justices in all actions sought to be coordinated. Where the motion is made upon notice, the notice should refer to subdivision 4 of the Procedural Rules in lieu of a return date. Procedural Rules (B)(4). The papers submitted in support of coordination should address the factors the panel must consider in deciding whether to coordinate the actions. These factors include the complexity of the actions; whether common questions of law or fact exist and the importance of the common questions; the risk that coordination may unreasonably delay the subject actions, increase the expense or otherwise prejudice a party; the risk of duplicative or inconsistent rulings or judgments; the convenience of the parties, witnesses and counsel; whether coordinated discovery is desirable; the efficient utilization of judicial resources; whether issues of insurance, limits on assets or potential bankruptcy can be best addressed in coordinated proceedings; and the pendency of related actions in federal or other state courts. (See Rule 202.69(b)(3).) After the filing of a notice of motion with the clerk of the panel or in the order to show cause, the panel will issue a briefing schedule and may schedule oral argument. Procedural Rules B(4). The briefing schedules set by the panel have allowed approximately two-and-a-half weeks for service of any opposition papers and approximately one week for service of any reply. The panel has convened only once to hear argument, on Nov. 15, 2002, at the New York County Courthouse, and entertained argument on that date with respect to three coordination applications. The other five applications were determined on submission. While the panel is considering the application, it may issue a stay of proceedings in any or all of the potentially affected actions. Absent a stay, proceedings will continue in the actions as directed by the assigned justices. Procedural Rules D. The panel is required to issue a decision and order granting or denying coordination (and stating the reasons therefor) within 30 days after submission of reply papers or from oral argument, whichever is later. Procedural Rules E. If coordination is directed, the decision and order will also designate the county in which the coordinated proceedings will occur. Id. In making that determination, the panel is required to consider, inter alia, the original venues of the actions, whether the actions arise from an accident or events in a particular county, judicial caseloads, fairness to the parties, convenience of the parties, witnesses and counsel, and whether any such factors are best advanced by coordination before more than one justice. Rule 202.60(b)(3)(ii). The panel’s coordination determination is administrative and, thus, not appealable. (Procedural Rules E(3).) Once the panel determines the venue of the coordinated proceedings, the Administrative Judge of that district then selects the Coordinating Justice or Justices. Rule 202.69(c)(1). The Coordinating Justice is given broad authority to preside over the coordinated actions until they are trial ready. The Coordinating Justice has the power to establish a steering committee and designate liaison counsel on behalf of the parties and to establish case management procedures, such as assigning a master caption, creating a central case file and docket, establishing a service list, issuing case management orders and requiring the parties to use uniform requests for disclosure, and directing that the parties participate in settlement discussions or court-annexed alternative dispute resolution procedures. In contrast to multidistrict litigation proceedings in the federal courts, a Coordinating Justice also has the authority to try any aspect of the coordinated cases with the parties’ consent. Rule 202.69(c)(2). Although practitioners generally associate coordination with mass tort litigation, the applications presented to the panel illustrate the broad range of actions for which coordination may be available: CASES DIRECTING COORDINATION H & P Lumber and Material, Inc. v. 133 Montgomery Street Associates, Ltd., (0001/2002) involved four actions pending in two counties which involved the sale and delivery by a single plaintiff of lumber and materials to various projects owned by related company defendants. The panel determined that the actions were “related and would most efficiently be processed together” and directed coordination based upon the joint stipulation of the parties. Piscionari v. Commonwealth Land Title Insurance Co. (0003/2002), in which the authors represent three of the defendant title insurance underwriters in the actions involved, initially concerned seven putative class actions pending in four counties brought by the same attorneys filing virtually identical complaints against seven different title insurance underwriters. The complaints alleged that the underwriters had failed to notify consumers of certain premium discounts and to provide such discounts. Although the putative classes, if certified, would each consist of different members, all seven actions asserted identical causes of action. The panel found that, although the parties to the actions were all different, the cases posed common questions of law, and the factual contexts were all similar, even though the details of each case might differ. Directing coordination, the panel noted that coordination would facilitate efficient discovery and promote consistency in the application of the common legal issues. Kitsos v. Weiner (0004/2002) involved eight actions pending in two counties arising from a series of failed business transactions between two partners, all involving different claims and some involving different, but related parties. The panel directed coordination, reasoning that the actions all arose from the same circumstances — the failure of the business relationships. Notably, notes of issue had been filed in three of the actions before the application for coordination; the panel decided that those cases would be coordinated at the discretion of the coordinating justice. Pavon v. 19th Street Associates LLC (0005/2002) involved seven actions commenced in two counties seeking damages for personal injury and property damage resulting from an explosion in a Manhattan building. The defendants, the owner and the managing agent of the building applied for coordination of those actions and any subsequently filed action involving the explosion. In support of coordination the defendants asserted that the explosion occurred as a result of a tenant’s use and storage of chemicals and that there were common technical and factual issues of causation. The panel agreed, holding that coordination was appropriate because all claims arose from the same event and all seven cases presented the same causation issue. The only application for coordination filed in 2003, Viera v. The Delaco Co. (0001/2002), involved the only group of mass tort cases considered to date by the panel. Viera involved 24 actions pending in three counties seeking to recover damages allegedly sustained from ingestion of phenylpropanolamine (PPA), an active ingredient used in certain nasal decongestants and appetite suppressants. The actions all involved the same central causation issue — whether and under what circumstances PPA can cause hemorrhagic stroke or any other injuries alleged by the plaintiffs. The panel directed coordination, holding that coordination was supported by several factors, including that various other litigations pending in federal and other state courts involving PPA had all been coordinated, that the parties had been utilizing informal coordination and that coordination would result in judicial economy given the complexity of the causation analysis. CASES DENYING COORDINATION Dominion Transmission, Inc. v. Town of Allen (0002/0002) involved six actions pending in five counties brought by the same plaintiff against different municipalities seeking a review of real property tax assessments of natural gas transmission pipelines located throughout New York State. Under � 702(1) of the Real Property Actions and Proceedings Law, each such assessment proceeding had to be brought in the Supreme Court in the judicial district in which the assessment was made. In support of coordination, Dominion argued that common issues of fact and law existed, including the methodology, reliability and admissibility of a study it undertook to support its valuation of the pipelines in each municipality. All but one of the defendant towns opposed coordination, arguing that there was no relationship between the various parcels for tax certiorari purposes, that each parcel had its own discrete assessment issues and, thus, that coordination would not promote judicial economy. The panel denied the application, finding that “distinctive factors outweigh any convenience to [the plaintiff] that coordination would serve.” The panel noted that the proceedings all involved multiple properties, each of which would require particularized discovery, and that the municipalities’ interests were sufficiently distinct to require that the matters proceed separately. Zurich American Insurance Co. v. Audiovox Corp. (0006/0002) involved three actions pending in two counties seeking declaratory judgments concerning insurance coverage for the same series of underlying class actions brought against Audiovox by cellular telephone users. In the first filed action, the New York County Supreme Court issued an order, which was affirmed on appeal, declaring that Zurich had no obligation to defend the underlying actions. The Suffolk County action, subsequently filed by Audiovox, sought a declaratory judgment with respect to coverage for the amended complaints in the same underlying actions. Zurich moved by order to show cause for coordination and requested a stay of the actions pending the panel’s determination. The panel declined to sign the order to show cause and directed the parties instead to move to consolidate the cases under CPLR 602. The panel reached a similar result in deciding an application to coordinate four actions filed against Enterprise Rent-A-Car and others pending in two counties arising from a car accident in Kings County. The central issue in the cases, which all involved different parties and sought damages and/or declaratory judgments concerning insurance coverage, was whether the drivers had permission to use the vehicles. Parties to the Kings County actions sought stays of their cases pending the determination of that issue in an action pending in Suffolk County, and vice versa. The Suffolk County justice wrote to the panel requesting coordination in Kings County. The panel, without issuing a formal decision, advised the justice “to proceed under CPLR 602.” SPECIAL CONCERNS Coordination can be a particularly useful tool in managing statewide class actions commenced against different defendants based on similarly alleged conduct. A defendant considering whether to seek coordination of class actions must, however, exercise caution when making the case that coordination is warranted. The rationale for coordination is the existence of a common issue of law or fact. Under CPLR 901(2), one of the prerequisites to certification of a class is that “there are questions of law or fact common to the class which predominate over any questions affecting only individual members.” Any arguments made by a defendant during the coordination process concerning the existence of common issues can be turned against that defendant during the certification process. A class action plaintiff opposing coordination may also find its arguments turned against it during the class certification process. Unlike certification, though, coordination does not require that common legal or factual issues predominate over other issues in each particular action and, as the cases that have already come before the panel demonstrate, coordination of actions involving different issues and claims may be appropriate. CONTACTING THE PANEL To obtain additional information concerning the panel or the procedures for seeking coordination, practitioners should contact Rivera at the Office of the Clerk, Litigation Coordinating Panel, State of New York, New York County Courthouse, 60 Centre Street, Room 148, New York, N.Y. 10007, (212) 748-5303 or visit the panel’s Web site. David Fleischer is a partner and Jodi Kleinick is a senior associate practicing litigation in the New York office of Paul, Hastings, Janofsky & Walker (www.paulhastings.com). The authors represent three of the defendant title insurance underwriters in the actions involved in Piscionari v. Commonwealth Land Title Insurance Co., discussed in this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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