COMPUTER CORP v. MBS INDUSTRIES INC

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

M & K COMPUTER CORP., appellant, v. MBS INDUSTRIES, INC., defendant,

Patrick LoPresti, Individually and as President and Representative of Local One, Amalgamated Lithographers of America, respondent (Action No. 1). Patrick LoPresti, Individually and as President and Representative of Local One, Amalgamated Lithographers of America, respondent, v. Marcum & Kliegman, et al., appellants (Action No. 2).

Decided: April 24, 2000

CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY and NANCY E. SMITH, JJ. Andrew D. Presberg, P.C., Islandia, N.Y. (Kelly Daniele of counsel), for appellant in Action No. 1, and Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (Eileen Forde of counsel), for appellants in Action No. 2 (one brief filed). Kennedy, Schwartz & Cure, P.C., New York, N.Y. (Stuart Lichten of counsel), for respondent.

In an action, inter alia, to recover damages for breach of a noncompetition clause and tortious interference with a contractual relationship, which was commenced in the Supreme Court, Nassau County (Action No. 1), and an action to recover damages for fraud, pending in the Supreme Court, New York County (Action No. 2), the plaintiff in Action No. 1 and the defendants in Action No. 2 appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 3, 1999, which granted the motion of Patrick LoPresti, a defendant in Action No. 1 and the plaintiff in Action No. 2, to consolidate the actions and transferred venue of the consolidated action to New York County.

ORDERED that the order is reversed, with costs, the motion is denied, and the Clerk of the Supreme Court, New York County, is directed to deliver to the Clerk of the Supreme Court, Nassau County, all the papers filed in Action No. 1 (see, CPLR 511[d] ).

It was an improvident exercise of discretion to consolidate the action pending in the Supreme Court, Nassau County, with the action pending in the Supreme Court, New York County, since, as a result of the consolidation, certain parties would appear as both plaintiff and defendant in the consolidated action (see, Bass v. France, 70 A.D.2d 849, 418 N.Y.S.2d 43).   Moreover, there is an insufficient identity of factual or legal issues in the actions to warrant consolidation (see, CPLR 602[a];  J.T. Mauro Co. v. Genesee Val. Group Health Assn., 184 A.D.2d 998, 585 N.Y.S.2d 247;  Dunkin' Donuts v. Reyes Corp., 166 A.D.2d 908, 560 N.Y.S.2d 569).

MEMORANDUM BY THE COURT.

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