SMITH v. SMITH (1999)

 Plaintiffs commenced an action seeking damages for personal injuries sustained by Melody Smith (plaintiff) in an automobile accident (action No. 1).   Defendants therein moved to consolidate that action with a medical malpractice action subsequently commenced by plaintiffs against a physician who treated plaintiff for the injuries she sustained in the automobile accident (action No. 2).   Supreme Court did not abuse its discretion in denying the motion (see, Dias v. Berman, 188 A.D.2d 331, 591 N.Y.S.2d 163).   Where common questions of law or fact exist, consolidation should be granted unless the party opposing consolidation establishes prejudice to a substantial right (see, Zupich v. Flushing Hosp. & Med. Ctr., 156 A.D.2d 677, 549 N.Y.S.2d 441).   Although the fact that actions are at different stages of discovery generally is insufficient to establish prejudice to a substantial right (see, Collazo v. City of New York, 213 A.D.2d 270, 624 N.Y.S.2d 130;  Zimmerman v. Mansell, 184 A.D.2d 1084, 1085, 584 N.Y.S.2d 378), here plaintiffs demonstrated that, when the consolidation motion was made, discovery was complete, a note of issue was filed and the trial was scheduled in action No. 1, while action No. 2 was still in the pleading stage.   Thus, in the circumstances of this case, plaintiffs have established prejudice to a substantial right (see, Dias v. Berman, supra;  Rennert Diana & Co. v. Kin Chevrolet, Inc., 137 A.D.2d 589, 524 N.Y.S.2d 481;  Mulligan v. Farmingdale Union Free School Dist. No. 22, 133 A.D.2d 617, 519 N.Y.S.2d 725;  see also, Gardner v. City of New York, 102 A.D.2d 800, 801, 477 N.Y.S.2d 159).

Order unanimously affirmed with costs.

MEMORANDUM: