| Mas-Edwards v Ultimate Servs., Inc. |
| 2007 NY Slip Op 08419 [45 AD3d 540] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Carmen Mas-Edwards, Respondent, v Ultimate Services,Inc., et al., Appellants. |
—[*1] Friedman & Simon, LLP, Jericho, N.Y. (Roger L. Simon of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Pines, J.), dated December 20, 2006, which denied theirmotion pursuant to CPLR 602 (a) to consolidate the instant action with an action entitledIllinois Natl. Ins. Co. v Ultimate Servs., Inc., pending in the Supreme Court, NassauCounty, under index No. 7289/06.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the motion is granted to the extent of directing a joint trial of the two actions in Suffolk County,and the Clerk of the Supreme Court, Nassau County, shall forthwith deliver to the Clerk of theSupreme Court, Suffolk County, all papers and certified copies of all minutes and entries in theaction entitled Illinois Natl. Ins. Co. v Ultimate Servs. Inc., under Nassau County indexNo. 7289/06.
"Where common questions of law or fact exist, a motion to consolidate or for a joint trialpursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial rightby the party opposing the motion" (Perini Corp. v WDF, Inc., 33 AD3d 605, 606 [2006]). Here, bothactions involve common questions of law and fact and a joint trial will avoid unnecessaryduplication of proceedings, save unnecessary costs and expenses and prevent the injustice whichwould result from divergent decisions based on the same facts (Gutman v Klein, 26 AD3d 464,465 [2006]). Moreover, the plaintiffs, in opposing the motion, failed to establish that a joint trialwould prejudice a substantial right (see Mattia v Food Emporium, 259 AD2d 527[1999]). Although the defendants moved to consolidate the actions, the more appropriate methodof achieving that purpose is a joint trial, [*2]particularly since thetwo actions involve different plaintiffs (Perini Corp. v WDF, Inc., 33 AD3d at 606-607).Finally, venue should be placed in Suffolk County because the first action was commenced inthat county, and there are no special circumstances which would warrant placement of venueelsewhere (see Perini Corp. v WDF, Inc., 33 AD3d at 607; Gadelov v Shure, 274AD2d 375 [2000]; Mattia v Food Emporium, 259 AD2d 527 [1999]). Schmidt, J.P.,Skelos, Lifson and Balkin, JJ., concur.