Anatomy of Bad Lawyering – Part II
Part I ended with the parties having served cross-complaints: first Acme served Smith, then Smith served Acme.
Both complaints addressed the same nucleus of operative facts- the exact same lawsuit now, in fact, existed TWICE. Rather than move to consolidate the actions, Acme files a motion to dismiss.
[definition of a “motion”:
Seems like a great idea: get rid of the pleading that was filed second.
[definition of a “pleading”: pleadings: complaint or petition, answer, reply, (and bill of particulars)- see https://www.nycourts.gov/lawlibraries/glossary.shtml][/one_half]
However, unfortunately for Acme, Smith had an absolute right to file his own complaint, because there is no “mandatory joinder” in New York State courts. See www.law.nyu.edu/sites/default/files/upload_documents/chase05.doc, page 30-31. NOTE: this document will automatically download as a Microsoft Word file.
Acme’s only option here, and one that arguably HAD to be made, was a motion to consolidate (CPLR § 602) the two actions into one action, under one index number, and filed under one E-file docket.