Weiner v. New York Property Insurance Underwriting Ass'n

73 A.D.2d 780, 423 N.Y.S.2d 527, 1979 N.Y. App. Div. LEXIS 14640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1979
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered April 30, 1979 in Ulster County, which consolidated five actions for joint trial. When two or more actions are pending before a court and they involve "a common question of law or fact”, CPLR 602 (subd [a]) provides that the court may, on motion, consolidate them or, as here, order them jointly tried. The motion lies in the discretion of the court, and the burden is on the party resisting the motion to show that it would prejudice him (Maigur v Saratogian, Inc., 47 AD2d 982). Each of the five actions herein raise common factual questions concerning the validity of the assignment of the mortgage to plaintiff Myrna Weiner. It would economize judicial effort to have that issue determined in one trial, rather than in separate trials which could result in inconsistent verdicts. It is not necessary that all questions of law or fact be common to the various actions (Thayer v Collett, 41 AD2d 581), and the fact that certain of the actions involve equitable causes of action does not prevent joinder (Vinlis Constr. Co. v Roreck, 23 AD2d 895). Plaintiffs have not shown any prejudice to them in a joint trial, and, accordingly, Special Term did not abuse its discretion in ordering a joint trial. Order affirmed, with costs. Mahoney, P. J., Greenblott, Main, Mikoll and Herlihy, JJ., concur.