Watmet, Inc. v. Robinson

136 A.D.2d 947, 524 N.Y.S.2d 954, 1988 N.Y. App. Div. LEXIS 1272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1988
• Status: Published

Opinion

—Order unanimously modified on the law to grant plaintiff’s motion to consolidate actions Nos. 1 and 2 for a joint trial in Niagara County and, as modified affirmed without costs. Memorandum: Special Term’s award of counsel fees pursuant to CPLR 6315 was proper even though defendant’s application was brought on by ordinary notice of motion rather than by an order to show cause. The motion requirement in CPLR 6315 is to insure that all "interested persons” receive notice of the application. It is undisputed that plaintiff had actual notice of the application for counsel fees and, in fact, submitted papers in opposition to the motion. However, it was an improvident exercise of discretion for Special Term to deny plaintiff’s motion to consolidate actions Nos. 1 and 2 for trial in Niagara County, as the two pending actions involve common questions of law and fact (see, Business Council v Cooney, 102 AD2d 1001; Williams v Mascitti, 71 AD2d 813). (Appeal from order of Supreme Court, Niagara County, Cook, J.—counsel fees.) Present—Callahan, J. P., Doerr, Denman, Green and Pine, JJ.