Opinion
2002-02275
Argued June 10, 2002
August 12, 2002
In an action, inter alia, to recover damages for breach of fiduciary duty, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), entered February 20, 2002, which denied their motion for leave to serve a proposed amended answer dated November 26, 2001, and to consolidate the instant action with another action in the same court, entitled Skyline Partition Systems v. Corporate Interiors, pending under Index No. 17629/01.
Thelen Reid Priest, LLP, New York, N.Y. (Eli R. Mattioli and Susan B. McInerney of counsel), for appellants.
Glenn Backer, New York, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, with costs, the motion is granted, and the proposed amended answer dated November 26, 2001, is deemed served.
The counterclaims asserted by Corporate Interiors, Inc. (hereinafter Corporate), in the action brought by Skyline Partition Systems, Inc. (hereinafter Skyline), against it raise issues of law and fact which are identical to issues it raises in this action against the appellants. In view of the foregoing, it was an improvident exercise of discretion to deny consolidation (see Flaherty v. RCP Assocs., 208 A.D.2d 496, 498).
Further, the appellants should have been granted leave to serve a proposed amended answer to respond to allegations raised by Corporate that the appellants and Skyline conspired with each other to commit tortious conduct (see CPLR 3025[b]).
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and TOWNES, JJ., concur.