DUKHVALOV v. PSHIERER (2005)

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

Leonid DUKHVALOV, etc., et al., plaintiffs, v. Stephen PSHIERER, et al., defendants,
GMAC Leasing Corporation, respondent. (Action No. 1). Leonid Dukhvalov, etc., et al., plaintiffs, v. Frankie & Johnnie's Steakhouse, et al., appellants. (Action No. 2).

Decided: February 07, 2005

HOWARD MILLER, J.P., ROBERT W. SCHMIDT, DAVID S. RITTER, STEPHEN G. CRANE, and PETER B. SKELOS, JJ.

Cheven, Keely & Hatzis, New York, N.Y. (Mark L. Levenson of counsel), for appellants. Bivona & Cohen, P.C., New York, N.Y. (Robert B. Weissman of counsel), for respondent.

In related actions to recover damages for wrongful death and pain and suffering, etc., Frankie & Johnnie's Steakhouse and F & J Steaks Rye, LLC, d/b/a Frankie and Johnnie's Steakhouse, the defendants in Action No. 2, appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated April 30, 2004, which granted the motion of GMAC Leasing Corporation, a defendant in Action No. 1, to consolidate the two actions.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the respondent's motion to consolidate the two actions, where, as here, both actions involve common questions of law and fact, and the appellants failed to demonstrate that prejudice to a substantial right would result from consolidation (see CPLR 602[a]; Corporate Interiors v. Pappas, 297 A.D.2d 306, 746 N.Y.S.2d 261; I. Burack, Inc. v. Rosner's Supply Corp., 236 A.D.2d 518, 654 N.Y.S.2d 615; Flaherty v. RCP Assocs., 208 A.D.2d 496, 498, 616 N.Y.S.2d 801; Zupich v. Flushing Hosp. and Med. Ctr., 156 A.D.2d 677, 549 N.Y.S.2d 441).

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