| Plot Realty LLC v DeSilva |
| 2007 NY Slip Op 08365 [45 AD3d 312] |
| November 8, 2007 |
| Appellate Division, First Department |
| Plot Realty LLC et al., Respondents, v Richard DeSilva,Jr., et al., Appellants. |
—[*1] Lawrence A. Omansky, New York City, for respondents.
Orders, Supreme Court, New York County (Karen S. Smith, J.), entered September 14, 2006and October 16, 2006, which, to the extent appealed from, denied defendants' motion to dismissthe complaint, granted plaintiffs' cross motion to consolidate the action with a related actionbearing index number 108951/04 (action No. 1) for purposes of discovery, and granted plaintiffs'cross motion to the extent of disqualifying Jeffrey Ween, Esq. from representing defendantsDeSilva and Desco Appliances Inc., in this action (action No. 2), and reserving decision on somuch of the cross motion to disqualify Ween in action No. 1 until completion of discovery,unanimously modified, on the law, to the extent of denying that portion of plaintiffs' crossmotion to disqualify Ween as counsel in action No. 2, and otherwise affirmed, without costs.
The court properly determined that dismissal of the complaint alleging slander of title wasnot warranted. Plaintiffs sufficiently set forth allegations that defendants' act of filing the noticeof pendency was unjustified as action No. 1 concerned only an encroachment and nuisanceallegedly perpetrated by plaintiffs in connection with building renovations, rather than a claim bydefendants in an interest in plaintiffs' building (see Braunston v Anchorage Woods, 10NY2d 302, 305-306 [1961]; Sourian v Saleh, 50 AD2d 756 [1975]). The complaint alsoalleged the required special damages (see Brown v Bethlehem Terrace Assoc., 136 AD2d222 [1988]).
Consolidation of the two actions for discovery purposes was appropriate since there werecommon questions of law and fact, there was no demonstration that the consolidation wouldprejudice any substantial right of defendants, and any delay caused by the consolidation is notsufficient reason to bar it (Amtorg Trading Corp. v Broadway & 56th St. Assoc., 191AD2d 212 [1993]).
The court, however, erred in disqualifying Jeffrey Ween as defendants' counsel in action No.2 since there was an insufficient record, at this stage of the litigation, that he was a necessarywitness based upon his actions in filing the notice of pendency (see Talvy v American RedCross in Greater N.Y., 205 AD2d 143, 152 [1994], affd 87 NY2d 826 [1995]).[*2]
We have considered defendants' remaining contentionsand find them unavailing. Concur—Mazzarelli, J.P., Marlow, Williams, Catterson andKavanagh, JJ.