Morrissey v. Morrissey

122 A.D.2d 840, 505 N.Y.S.2d 710, 1986 N.Y. App. Div. LEXIS 59339

Opinion

— In an action, inter alia, to recover damages for breach of a separation agreement, the plaintiff husband appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated February 19, 1985, which, upon reargument of his motion to remove an action between the parties pending in the. Civil Court, Kings County, to the Supreme Court, Kings County, and to consolidate it with this action, adhered to the original determination denying the same.

Order affirmed, with costs.

Under the facts of this case, it was not an abuse of discretion to refuse to remove the pending Civil Court action to the Supreme Court in the interest of the proper administration of justice (see, NY Const, art VI, § 19 [a]; CPLR 325 [b]). The original motion to consolidate the actions was made on the eve of the trial of the Civil Court action, while the motion to reargue was made returnable after that trial had already been completed. In any event, the plaintiff has not been unduly prejudiced, since his counterclaim was severed by the Civil Court and was thereby preserved for future timely prosecution in the proper forum. Gibbons, J. P., Bracken, Niehoff and Kunzeman, JJ., concur.