Opinion
October 28, 1993
Appeal from the Supreme Court, Ulster County (Canfield, J.).
The sole issue in this case is whether Supreme Court abused its discretion in denying plaintiff's motion to consolidate its pending Supreme Court action against defendant for breach of the noncompetition provisions contained in the parties' employment contract with a small claims action commenced by defendant to recover from plaintiff the $751.74 balance allegedly due for his last week's salary. The court concluded not only that no common questions of fact or law existed between the two actions (reasoning that the Supreme Court action spoke to defendant's acts after he left employment while the small claims action concerned acts which occurred while defendant was still in plaintiff's employ), but, most significantly, that consolidation would substantially prejudice the small claims action inasmuch as it already had been scheduled for trial whereas discovery had not yet even begun in the Supreme Court action. Indeed, it appears from a reading of the record that the small claims trial actually had to be and continues to be delayed because of pendency of the consolidation motion.
It being well settled that the existence of substantial prejudice in the form of delay in the trial of another action is sufficient reason to deny consolidation even in situations where common questions of law or fact exist (see, Nicolla v. Nicolla, 128 A.D.2d 998; see also, Stephens v. Allstate Ins. Co., 185 A.D.2d 338; Steuerman v. Broughton, 123 A.D.2d 681; Adler v. Adler, 57 A.D.2d 1014), we see no abuse of discretion in Supreme Court's denial of the motion.
Mikoll, J.P., Mercure, Cardona and Casey, JJ., concur. Ordered that the order is affirmed, with costs.