Wilk v. Perillo Bros. Fuel Oil Corp.

101 A.D.2d 859, 476 N.Y.S.2d 13, 1984 N.Y. App. Div. LEXIS 18546

Opinion

Plaintiff, in action No. 2, appeals from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated October 6, 1983, which granted a motion by the defendants in actions Nos. 1 and 2 for a change of venue of action No. 2 from Queens County to Suffolk County, and a joint trial with action No. 1 pending in Suffolk County. 11 Order modified by deleting so much thereof as directed the removal of action No. 2 to Suffolk County, and by substituting therefor a provision directing that action No. 1 be removed from Suffolk County to Queens County, to be tried jointly with action No. 2 pending in Queens County. As so modified, order affirmed, with costs to the appellant. H Under the circumstances, it was an improvident exercise of discretion to transfer venue of action No. 2 to Suffolk County and direct a joint trial in said county. All things being equal, where consolidation or joint trials of actions begun in different counties is to be had, the venue should be in the county where jurisdiction was first invoked (Maccabee v Nangle, 33 AD2d 918). 11 Since action No. 2 was first commenced, venue and trial of both actions should lie in Queens County. Gibbons, J. P., O’Connor, Boyers and Lawrence, JJ., concur.