Summary
In Firequench, Inc. v. Kaplan, (256 A.D.2d 213, 682 NYS2d 369, 1st Dept., 1998), the court specifically stated that if" consolidation [would] serve to "delay either action", then it should not be granted.
Summary of this case from Viafax Corp. v. Citicorp Leasing, Inc.Opinion
December 22, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
The initial action was brought by Firequench, Inc., based upon services it performed as a subcontractor hired to correct defects in and obtain Fire Department approval of a fire alarm system installed in premises located at 18 East 53rd Street. The second action, in which the plaintiffs include some of the defendants named in the first action, sought money damages totaling $295,000 against certain contractors, based upon allegations that the contractors, who were initially hired to install the fire alarm systems and obtain approval for them, had failed to do so.
The motion to consolidate the two actions should have been granted. "Consolidation is generally favored in the interest of judicial economy and ease of decision-making where cases present common questions of law and fact, 'unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right'" ( Raboy v. McCrory Corp., 210 A.D.2d 145, 147). Both the issue of indemnification and issues relating to work performed at 18 East 53rd Street involve questions of law and fact common to both actions. Further, parties to the second action possess knowledge and information relevant to the claim in the first action, and the witnesses in each case will be almost identical. Nor would consolidation serve to delay either action.
In view of the damages sought, particularly given the consolidation ordered here, transfer pursuant to CPLR 325 (d) is inappropriate.
Concur — Ellerin, J. P., Nardelli, Rubin and Saxe, JJ.