Gouldsbury v. Dan's Supreme Supermarket, Inc.

138 A.D.2d 675, 526 N.Y.S.2d 779, 1988 N.Y. App. Div. LEXIS 3233

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1988
• Status: Published

Opinion

In an action to recover damages for alleged fraud and misrepresentation, and an action to recover damages for alleged legal malpractice, the defendant in action No. 1, Dan’s Supreme Supermarket, Inc., appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated April 29, 1987, which denied its application to consolidate the actions.

Ordered that the order is affirmed, with costs.

While there are some common issues of law and fact shared by these two actions, under all of the circumstances, including the disparity between the stages of litigation to which each case has progressed and the fact that principal claims in the two actions are based upon widely disparate legal theories, we conclude that it was not an abuse of discretion to deny the motion to consolidate (CPLR 602; see, Brown v Brooklyn Union Gas Co., 137 AD2d 479; Aluminum Mill Supply Corp. v Skyview Metals, 117 AD2d 765, 767). We recommend that for reasons of judicial economy the trial of the fraud action precede the trial of the legal malpractice action (see, Brown v Brooklyn Union Gas Co., supra). Thompson, J. P., Bracken, Brown and Weinstein, JJ., concur.