Opinion
November 2, 1970
Appeal from an order of the Supreme Court, Dutchess County, dated August 25, 1969, which denied appellants' motion to consolidate the actions. Order reversed, with $10 costs and disbursements, and motion granted. Both actions involve identical work and services of respondents, who are lawyers, in connection with an unsuccessful effort by appellant Malcolm Cornell to purchase a tract of real property from one McEnaney. In Action No. 1, pending in Supreme Court, Dutchess County, said appellant alleged that respondents had failed to successfully prosecute an action against McEnaney because of negligent and careless advice and breach of warranty of requisite skill in law. In Action No. 2, pending in the County Court, Dutchess County, respondents Reed Reed made claim for other work and services, in addition to services on the McEnaney matter. The claim is made that the McEnaney services were rendered to the corporate entity, appellant Malcolm Cornell, Inc., although admitting that the purchase contract with McEnaney was in the individual name of appellant Malcolm Cornell. The record demonstrates that the McEnaney matter is a substantial issue in both actions. The question of whether respondents rendered services to Malcolm Cornell, the individual, or to Malcolm Cornell, Inc., the corporate entity, is a question of fact common to both actions. No material prejudice would result to respondents from consolidation of the actions. It was an improvident exercise of discretion to deny the motion to consolidate (cf. Lepke v. Sclafani Sons, 20 Misc.2d 50; Vinbill Corp. v. Morrison, 19 A.D.2d 659). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.