L. G. J. K. Realty Corp. v. Hartford Fire Insurance

48 A.D.2d 670, 367 N.Y.S.2d 564, 1975 N.Y. App. Div. LEXIS 9690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1975
• Docket: Action No. 1; Action No. 2
• Status: Published

Opinion

The appeals are from an order of the Supreme Court, Kings County, entered September 10, 1974, which denied a motion for the consolidation of two actions commenced by plaintiff, L. G. J. K. Realty Corp. Order reversed, in the exercise of discretion, with one bill of $20 costs and disbursements payable jointly to appellants against respondents in Action No. 1, and motion granted to the extent that a joint trial of the actions is ordered. In Action No. 1 plaintiff seeks to recover under certain policies of fire insurance issued by the defendant insurance companies. The insurers, inter alia, asserted the defense that plaintiff is not entitled to recover because the subject premises had been vacant and unoccupied in excess of 60 days, in violation of the terms of the policies. Plaintiff then commenced Action No. 2, which, insofar as it is against defendant Anna Drimer, the broker who procured the policies of insurance and caused their transfer to plaintiff, alleges negligence by her failure to arrange for coverage in light of plaintiff’s seasonal occupancy of the premises. Claiming that either the defendant insurance companies or the broker were liable for its fire loss, plaintiff moved for consolidation of the two actions. Defendant Drimer joined in that motion. Since it appears from the record that a common question of fact will arise in each action as to the conduct of defendant Drimer in dealing with the defendant insurance companies, a joint trial is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent findings of fact. Gulotta, P. J., Rabin, Hopkins and Shapiro, JJ., concur; Martuscello, J., dissents and votes to affirm the order.