Summary
In Barman v. Greenwood Village Community Development, Inc., supra., in which the Second Department affirmed a decision coming out of Suffolk County Supreme Court (Tannebaum, J.) in 1989 in which actions were consolidated.
Summary of this case from Edgar v. EdgarOpinion
December 4, 1989
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is affirmed, with costs.
It is well established that the power to order consolidation rests in the sound discretion of the court, and that where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right (see, Business Council v Cooney, 102 A.D.2d 1001; Cushing v Cushing, 85 A.D.2d 809; see also, Computer Strategies v Commodore Business Machs., 105 A.D.2d 167, 173). The opposing parties herein have not demonstrated that they have been prejudiced by the order of consolidation. Therefore, the only issue remaining to be resolved is whether there exist sufficient common questions of law or fact warranting consolidation. We think there are.
The instant proceedings arise out of what can only be described as a "package deal". The Bermans entered into a contract to purchase a modular home from the Greenwood Village Community Development, Inc., to be located in a planned retirement community owned and operated by the Detroit Dragway Corporation doing business as Greenwood Village Community Management, Inc. They subsequently entered into a lease with the latter corporation renting the parcel of land upon which the home was placed. In fact, the purchase agreement specifically states that "it is the intent of this agreement that the home will be placed in Greenwood Village on land which will be leased to the Buyer" and that at closing, the buyer would be obligated "to execute the residency agreement which will allow Buyer to reside in GREENWOOD VILLAGE". The corporations are all interrelated companies managed by the same individual.
In matter No. 1, the Bermans seek to recover damages for breach of the purchase agreement and the lease. In matter No. 2, the landlord corporation Detroit Dragway Corporation seeks to evict the Bermans for failure to pay rent. Although the appellants argue that the matters involve two separate agreements with two separate corporations, the reality of the situation, as indicated above, is that the transaction must be viewed in its entirety as a unified whole. Under the circumstances, the matters involve common issues as to the rights and obligations of the parties to the transaction. Thus, it cannot be said that the court improvidently exercised its discretion in ordering a consolidation of the two matters (see, Import Alley v Mid-Island Shopping Plaza, 103 A.D.2d 797; Del Bello v Wilmot, 59 A.D.2d 1023). Kunzeman, J.P., Rubin, Harwood and Balletta, JJ., concur.