Dunkin' Donuts Inc. v. Reyes Corp.

166 A.D.2d 908, 560 N.Y.S.2d 569, 1990 N.Y. App. Div. LEXIS 12183

Opinion

Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improvidently exercised its discretion in granting defendants’ motion for removal and consolidation of a summary proceeding pending in Rochester City Court with an action for breach of a franchise agreement pending in Supreme Court. The threshold requirement to warrant the consolidation of the cases, namely, that a common question of law or fact exists, has not been met (see, CPLR 602 [a]; Bradford v Coleman Catholic High School, 110 AD2d 965; cf., Berman v Greenwood Vil. Community Dev., 156 AD2d 326). The obligation of the corporate defendant to pay rent under the lease is separate and independent from the obligations of defendants under the franchise agreement. Consolidation is not warranted by virtue of the affirmative defenses and counterclaims interposed by defendants in the respective actions. (Appeal from order of Supreme Court, Monroe County, Pat-low, J.—consolidation.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.