SIMPSON v. H.R.H. Construction Corporation, et al., Defendants-Respondents, (1999)

Supreme Court, Appellate Division, First Department, New York.

Harvey SIMPSON, et al., Plaintiffs-Respondents-Appellants, v. SUTTON EAST ASSOCIATES 86, et al., Defendants-Appellants-Respondents, H.R.H. Construction Corporation, et al., Defendants-Respondents,
The City of New York, et al.,Defendants. Action No. 1 H.R.H. Construction Corporation, Counterclaim Plaintiff-Respondent, v. David Edelstein, et al., Defendants-Appellants,
Robert Levitas, Defendant. The Board of Managers of The Channel Club, Plaintiff, v. Edward Simpson, et al., Defendants-Appellants, M.J. Raynes Incorporated, et al., Defendants. Action No. 2 [And A Third-Party Action]

Decided: September 23, 1999

WILLIAMS, J.P., TOM, LERNER, RUBIN and SAXE, JJ.

Franklin E. Tretter, for Sutton East Associates 86, et al., H.R.H. Construction Corp., et al., Edward Simpson, et al. Michael L. Chartan, for David Edelstein, et al.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered March 16, 1999, which, insofar as appealable, denied renewal of defendant's prior motion for consolidation of actions No. 1 and No. 2, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and, upon renewal, the motion granted to the extent of directing a joint trial to commence on or about September 27, 1999. Appeal from order, same court and Justice, entered October 20, 1998, which, insofar as appealed from, denied defendant's motion for consolidation, unanimously dismissed, without costs, in light of the foregoing.

The two actions involve common questions of law and fact, such as whether the work was done pursuant to the parties' contract, undertaken with sufficient equipment, and conducted without negligence or fraud. The same witnesses and documents would be offered in each action to litigate these claims. Any prejudice or confusion will be minimized by the fact that Action # 1, and possibly Action # 2, is to be a non-jury trial. Finally, both cases are now ready for trial. At argument, counsel for defendant represented that the summary judgment motion has been waived.

MEMORANDUM DECISION.

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