Palmiero v. North Shore University Hospital

194 A.D.2d 596, 599 N.Y.S.2d 984

Opinion

—In two actions, one to recover damages for personal injuries, the second to recover damages for wrongful death, the defendants appeal, as limited by their brief, from an order of the Supreme Court, Kings County (Kohn, J.), dated May 1, 1991, which denied their motion to dismiss the wrongful death action pursuant to CPLR 3211 (a) (4) and granted the plaintiff’s cross motion to consolidate the two actions.

Ordered that the order is affirmed, with costs.

It is well established that the question of whether to consolidate two actions rests in the sound discretion of the court, and that where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right (see, Berman v Greenwood Vil. Community Dev., 156 AD2d 326). In this case, it is undisputed that the actions involved common questions of law or fact. The defendants have failed to demonstrate that granting the cross motion resulted in prejudice of a substantial right.

Nor was it an improvident exercise of the Supreme Court’s discretion, under these circumstances, to deny the defendants’ motion to dismiss the wrongful death action pursuant to CPLR 3211 (a) (4). Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.