PERINI CORPORATION v. Heritage Mandell Mechanical Services, Inc., nonparty-respondent. (2006)

In an action to recover damages for breach of contract, the defendants, WDF, Inc., and Federal Insurance Company, appeal from (1) an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 30, 2005, which denied their motion to consolidate this action with an action entitled Heritage Mandell Mech. Servs. v. WDF, Inc., pending in the Supreme Court, New York County, under Index No. 602928/04, and to direct that the actions be tried jointly in the Supreme Court, Westchester County, and (2) an order of the same court entered May 10, 2005, which denied their motion for leave to reargue and renew.

ORDERED that the appeal from the order entered May 10, 2005, is dismissed;  and it is further,

ORDERED that the order entered March 30, 2005, is modified, on the law and the facts, by deleting the provision thereof denying that branch of the motion which was to direct that the actions be tried jointly in the Supreme Court, Westchester County, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with one bill of costs to the appellants, payable by the nonparty-respondent, and the Clerk of the Supreme Court, New York County, is directed to deliver to the Clerk of the Supreme Court, Westchester County, all papers filed in the action entitled Heritage Mandell Mech. Servs. v. WDF, Inc., and certified copies of all minutes and entries.

 Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion (see Nationwide Assoc. v. Targee St. Internal Med. Group, P.C. Profit Sharing Trust, 286 A.D.2d 717, 730 N.Y.S.2d 349;  Gadelov v. Shure, 274 A.D.2d 375, 711 N.Y.S.2d 896;  J & A Vending v. J.A.M. Vending, 268 A.D.2d 505, 703 N.Y.S.2d 53).   A review of the record indicates that the interests of justice and judicial economy would be served by a joint trial of the two actions since both actions concern the same construction project and allege similar acts or omissions by the defendant, WDF, Inc., that led to the alleged breach of each plaintiff's respective contract (see Stein v. Yonkers Contr., 244 A.D.2d 478, 665 N.Y.S.2d 332;  Zupich v. Flushing Hosp. & Med. Ctr., 156 A.D.2d 677, 549 N.Y.S.2d 441;  Mel-Stu Constr. Corp. v. Melwood Constr. Corp., 101 A.D.2d 809, 475 N.Y.S.2d 459;  Mideal Homes Corp. v. L & C Concrete Work, 90 A.D.2d 789, 455 N.Y.S.2d 394;  H.C.H. Contrs. v. Docutel Corp., 47 A.D.2d 539, 363 N.Y.S.2d 112).   Furthermore, contrary to the nonparty-respondent's contention, delay of the trial is not a sufficient basis to justify the denial of a joint trial (see Alsol Enters., Ltd. v. Premier Lincoln-Mercury, Inc., 11 A.D.3d 494, 783 N.Y.S.2d 620;  Zupich v. Flushing Hosp. & Med. Ctr., supra ).   Although the appellants moved, inter alia, to consolidate the actions, the more appropriate method of achieving that purpose is a joint trial, particularly since the two actions involve different plaintiffs (see Cola-Rugg Enters. v. Consolidated Edison Co. of N.Y., 109 A.D.2d 726, 486 N.Y.S.2d 43;  Mascioni v. Consolidated R.R. Corp., 94 A.D.2d 738, 462 N.Y.S.2d 491).   Furthermore, venue should be placed in Westchester County because the first action was commenced by the plaintiff, Perini Corporation, in that county and there are no special circumstances which would warrant placement of venue elsewhere (see Gadelov v. Shure, supra;   Mattia v. Food Emporium, 259 A.D.2d 527, 686 N.Y.S.2d 473;  Gomez v. Jersey Coast Egg Producers, 186 A.D.2d 629, 588 N.Y.S.2d 589).

The appeal from the order entered May 10, 2005, has been rendered academic in light of our determination on the appeal from the order entered March 30, 2005.   Additionally, to the extent that the order denied reargument, no appeal lies therefrom.