Fitzpatrick v. Cook

58 A.D.2d 642

Opinion

Appeal, as limited by appellants’ brief, from so much of an order of the Supreme Court, Orange County, entered February 14, 1977, as, upon reargument, adhered to a prior determination which denied appellants’ motion to remove Action No. 2 from .the Supreme Court, New York County to the Supreme Court, Orange County and for the consolidation of the actions. 'Order affirmed insofar as appealed from, with $50 costs and disbursements payable to plaintiff-respondent in Action No. 2 by appellants. Special Term, in denying the initial motion, properly noted that the two actions present different questions of law and fact. The motion to reargue was untimely, for such motion "should be made no later than the time limited for taking an appeal from the order; otherwise the prohibition against extending the time to take an appeal could be circumvented” (2A Weinstein-Korn-Miller, NY Civ Prac, par 2221.03, citing, inter alia, Liberty Nat. Bank & Trust Co. v Bero Constr. Corp., 29 AD2d 627). As to the merits, appellants’ belated contentions regarding convenience of witnesses and which action was first commenced do not prevail over the fact of the disparate nature of the actions and the circumstance that Action No. 2 was reached for trial in New York County prior to the motion herein and is actually ready for trial. Latham, J. P., Shapiro, Hawkins and Suozzi, JJ., concur.