146 North Salina Street, Inc. v. Unigard Jamestown Mutual Insurance

54 A.D.2d 1129, 388 N.Y.S.2d 805, 1976 N.Y. App. Div. LEXIS 15116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1976
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: The question before us is whether Special Term properly exercised its discretion in directing a joint trial of actions brought by the owner of real property and the principal tenant against several fire insurance companies. CPLR 602 (subd [a]) provides in pertinent part that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue * * * and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay”. A court has "wide discretion” to order or deny a joint trial in order to "eliminate multiplicity of actions pending in the same court while protecting substantial rights” (2 Weinstein-Korn-Miller, NY Civ Prac, par 602.01). All of the actions arise out of a single incident and the record discloses that there are common questions of law and fact. The appellants have not met "the burden of establishing” their claim of prejudice (Matter of Virgo S. S. Corp [Marship Corp. of Monrovia], 26 NY2d 157, 161-162). "Upon the total submission of all the issues * * * there will be no problems so 'confusing and burdensome to the trial jury’ as to preclude such procedure” (Moore v Atlas Assur. Co., 29 AD2d 912, 913). Special Term’s exercise of discretion in consolidating in a joint trial all five cases should not be disturbed. (Appeal from order of Onondaga Supreme Court&emdash;joint trial.) Present&emdash;Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ.