Rockaway Boulevard Wrecking & Lumber Co. v. Raylite Electric Corp.

Appellate Division of the Supreme Court of New York

Rockaway Boulevard Wrecking & Lumber Co. v. Raylite Electric Corp.

25 A.D.2d 842, 270 N.Y.S.2d 1, 1966 N.Y. App. Div. LEXIS 4195

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1966

StatusPublished

Cited by3 cases

This text of 25 A.D.2d 842 (Rockaway Boulevard Wrecking & Lumber Co. v. Raylite Electric Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rockaway Boulevard Wrecking & Lumber Co. v. Raylite Electric Corp., 25 A.D.2d 842, 270 N.Y.S.2d 1, 1966 N.Y. App. Div. LEXIS 4195 (N.Y. Ct. App. 1966).

Pincite

Opinion

Order, entered October 29, 1965, granting respondent Rockaway Boulevard Wrecking & Lumber Company’s motion to consolidate, and denying appellant Raylite Electric Corporation’s motion to strike an affirmative “real party in interest” defense by defendant Rockaway Boulevard, and granting defendant New York City Housing Authority’s motion for leave to interpose a similar defense, unanimously modified on the law, on the facts, and in the exercise of discretion, to [843]*843grant appellant’s motion to strike the aforesaid affirmative defense, to deny defendant Authority’s motion for leave to interpose an affirmative defense, and to provide that Raylite Electric Corporation shall have the right to open and close at the trial of the consolidated action, and as so modified, the order is affirmed, without eosts or disbursements to any party. The affirmative defense that appellant Raylite, by virtue of a partial recovery from its insurance carrier, is no longer the real party in interest, must fail both because of Raylite’s subrogation-type agreement authorized under CPLR 1004 and on the authority of Skinner v. Klein (24 A D 2d 433). Consolidation of the two actions was a proper exercise of discretion; they both involve determination of a central factual issue, namely the cause of the fire in question. However, it is usual practice for the Judge who directs consolidation, as distinguished from a direction for a joint trial, to also determine the order of opening and closing statements (Vidal v. Sheffield Farms Co., 208 Misc. 438, 440-441; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4016.12, p. 40-58). Appellant Raylite’s greater diligence in the substantial prosecution of its action entitles it to open and dose in the consolidated action (id., pp. 40-58 to 40-60).

Concur — Breitel, J. P., Rabin, McNally, Eager and Steuer, JJ.

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Order, entered October 29, 1965, granting respondent Rockaway Boulevard Wrecking & Lumber Company’s motion to consolidate, and denying appellant Raylite Electric Corporation’s motion to strike an affirmative “real party in interest” defense by defendant Rockaway Boulevard, and granting defendant New York City Housing Authority’s motion for leave to interpose a similar defense, unanimously modified on the law, on the facts, and in the exercise of discretion, to [843]*843grant appellant’s motion to strike the aforesaid affirmative defense, to deny defendant Authority’s motion for leave to interpose an affirmative defense, and to provide that Raylite Electric Corporation shall have the right to open and close at the trial of the consolidated action, and as so modified, the order is affirmed, without eosts or disbursements to any party. The affirmative defense that appellant Raylite, by virtue of a partial recovery from its insurance carrier, is no longer the real party in interest, must fail both because of Raylite’s subrogation-type agreement authorized under CPLR 1004 and on the authority of Skinner v. Klein (24 A D 2d 433). Consolidation of the two actions was a proper exercise of discretion; they both involve determination of a central factual issue, namely the cause of the fire in question. However, it is usual practice for the Judge who directs consolidation, as distinguished from a direction for a joint trial, to also determine the order of opening and closing statements (Vidal v. Sheffield Farms Co., 208 Misc. 438, 440-441; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4016.12, p. 40-58). Appellant Raylite’s greater diligence in the substantial prosecution of its action entitles it to open and dose in the consolidated action (id., pp. 40-58 to 40-60).

Concur — Breitel, J. P., Rabin, McNally, Eager and Steuer, JJ.

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Bluebook (online)

25 A.D.2d 842, 270 N.Y.S.2d 1, 1966 N.Y. App. Div. LEXIS 4195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rockaway-boulevard-wrecking-lumber-co-v-raylite-electric-corp-nyappdiv-1966.

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