| Alizio v Perpignano |
| 2010 NY Slip Op 08878 [78 AD3d 1087] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Anthony Alizio, Plaintiff, v Peter Robert Perpignano et al.,Defendants. (Action No. 1.) P.J. Alizio Realty, Inc., Plaintiff, v Lillian Eisenberg et al.,Defendants. (And a Third-Party Action.) (Action No. 2.) Irving Eisenberg, Plaintiff, v P.J. Alizio,Inc., et al., Defendants. (Action No. 3.) Anthony Alizio, Plaintiff, v Gregory Ronan et al.,Defendants. (Action No. 4.) Irving Eisenberg, Plaintiff, v P.J. Alizio, Inc., et al., Defendants.(Action No. 5.) Oceanview Realty, LLC, et al., Appellants, v Anthony Alizio et al., Respondents,et al., Defendants. (Action No. 6.) |
—[*1] Bracken & Margolin, LLP, Islandia, N.Y. (Jeffrey D. Powell and Kristen L. Ryan ofcounsel), for respondent Anthony Alizio. Sahn Ward & Baker, PLLC, Uniondale, N.Y. (Ralph Branciforte and Jon A. Ward ofcounsel), for respondent Joseph Alizio. Gallet Dreyer & Berkey, LLP, New York, N.Y. (David T. Azrin and Jerry A. Weiss ofcounsel), for respondent Lillian Eisenberg, as administrator of the estate of Irving Eisenberg. [*2]Herrick, Feinstein LLP, New York, N.Y. (Scott E. Mollenand Darlene Fairman of counsel), defendant pro se.
In related actions, inter alia, to recover damages for fraud and breach of contract (action No.6), the plaintiffs appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), enteredOctober 1, 2009, which granted those branches of the motion of the defendant Anthony Alizio,joined by the defendants Joseph Alizio and Lillian Eisenberg, as administrator of the estate ofIrving Eisenberg, which were pursuant to CPLR 602 (a) to transfer the venue of this action fromQueens County to Nassau County and thereupon to join for trial this action with an actionentitled Alizio v Perpignano (action No. 1), pending in the Supreme Court, NassauCounty, under index No. 19181/03, and four related actions (action Nos. 2, 3, 4 and 5) alsopending in the Supreme Court, Nassau County, all of which had previously been joined for trial.
Ordered that the order is affirmed, with one bill of costs payable by the appellants to therespondents.
Initially, we note that the defendant Anthony Alizio (hereinafter the defendant) moved inaction No. 6, inter alia, for an order "consolidating and/or joining" the instant action with certainactions pending in the Supreme Court, Nassau County, which had previously been joined fortrial, and the Supreme Court granted the branch of the motion which was for a joint trial, ratherthan the alternative branch which was for consolidation. In the order appealed from, the SupremeCourt left each of the actions intact and did not completely consolidate them into a single actionunder a single caption (see generally Mascioni v Consolidated R. R. Corp., 94 AD2d 738,739 [1983]; Brian Wallach Agency v Bank of N.Y., 75 AD2d 878, 879 [1980];Padilla v Greyhound Lines, 29 AD2d 495, 497 [1968]; see also Alexander,Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C602:2).
"[A] motion seeking a joint trial pursuant to CPLR 602 (a) rests within the sound discretionof the trial court" (Glussi v Fortune Brands, 276 AD2d 586, 587 [2000]; see J & AVending v Eagle & Fein, 268 AD2d 505, 506 [2000]). When there are common questions oflaw or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to asubstantial right (see Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 856 [2009];Glussi v Fortune Brands, 276 AD2d at 587; Ryckman vSchlessinger-Levi-Polatsch-Tydings, 225 AD2d 603 [1996]).
Here, the Supreme Court did not improvidently exercise its discretion in granting that branchof Anthony Alizio's motion which was for a joint trial because the several actions involvecommon questions of law and fact. Therefore, the interests of justice and judicial economy wouldbe served by a joint trial (see Glussi v Fortune Brands, 276 AD2d at 587; J & AVending v Eagle & Fein, 268 AD2d at 506). Furthermore, the plaintiffs' unsubstantiatedclaim that a joint trial would be "unwieldy" was not sufficient to satisfy the burden ofdemonstrating prejudice to a substantial right (see Whiteman v Parsons Transp. Group ofN.Y., Inc., 72 AD3d 677, 678 [2010]; Perini Corp. v WDF, Inc., 33 AD3d 605, 606[2006]).
The plaintiffs' remaining contention is without merit. Covello, J.P., Dickerson, Belen andLott, JJ., concur. [Prior Case History: 2009 NY Slip Op 32331(U).]