CPLR § 602 Consolidation
Whiteman v Parsons Transp. Group of N.Y., Inc., 2010 NY Slip Op 02944 (App. Div., 2nd, 2010)
Where common questions of law or fact exist, a motion pursuant to
CPLR 602(a) to consolidate or for a joint trial should be granted absent
a showing of prejudice to a substantial right of the party opposing the
motion (see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540; Perini
Corp. v WDF, Inc., 33 AD3d 605, 606; Nationwide Assoc. v Targee
St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717).
Here, the action commenced in the Supreme Court, Kings County, shares
defendants and questions of law and fact in common with two related
actions pending in the Supreme Court, New York County (see Nigro v
Pickett, 39 AD3d 720, 722; Spector v Zuckermann, 287 AD2d
704). Furthermore, the plaintiff failed to show prejudice to a
substantial right if this action is transferred to New York County, and
mere delay of the trial is not a sufficient basis upon which to deny a
motion for consolidation or a joint trial (see Alsol Enters., Ltd. v
Premier Lincoln-Mercury, Inc., 11 AD3d 494; Zupich v Flushing
Hosp. & Med. Ctr., 156 AD2d 677). Moreover, in the absence of
special circumstances, where the actions have been commenced in
different counties, the place of trial should be in the county where
venue of the first-commenced action currently lies (see Almoghazy v
Gonzalez, 233 AD2d 349, 350; Levertov v Congregation Yetev Lev [*2]D'Satmar, 129 AD2d 680; T T Enters. v
Gralnick, 127 AD2d 651, 652). Since venue properly lies in New York
County with respect to the first of the three subject actions to be
commenced, venue of the action commenced in the Supreme Court, Kings
County, was properly transferred to New York County.
However, the respondent's motion to consolidate the three actions
should have been granted only to the extent of directing a joint trial,
particularly since the actions involve different plaintiffs (see
Perini Corp. v WDF, Inc., 33 AD3d at 606-607; Cola-Rugg Enters., v
Consolidated Edison Co. of N.Y., 109 AD2d 726; Mascioni v
Consolidated R.R. Corp., 94 AD2d 738).
The bold is mine.