Weiss & Biheller, MDSE, Corp. v. Preciosa USA, Inc.

127 A.D.3d 1176, 5 N.Y.S.3d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2015
• Docket: 2014-02653
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated January 16, 2014, which denied their motion to consolidate this action with an action entitled Preciosa USA, Inc. v Weiss & Biheller, MDSE, Corp., pending in the Supreme Court, Westchester County, under index No. 62301/13.

Ordered that the order is affirmed, with costs.

“Where common questions of law or fact exist, a motion to consolidate should be granted absent a showing of prejudice to a substantial right by the party opposing the motion” (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010 [2007]; see Nigro v Pickett, 39 AD3d 720 [2007]). However, a motion to consolidate should be denied where the two actions do not share common questions of law or fact (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 757 [2013]). Contrary to the plaintiffs’ contention, the two subject actions do not share common questions of law or fact. Accordingly, the Supreme Court properly denied the plaintiffs’ motion to consolidate the two actions.

Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.