Mattia v. Food Emporium, Inc

In Mattia v. Food Emporium, Inc., 259 AD2d 527, 686 N.Y.S.2d 473 (2nd Dept. 1999) the Second Department held "[a] motion to consolidate actions or for a joint trial pursuant to CPLR 602 (a) rests in the sound discretion of the trial court. Absent a showing of prejudice to a substantial right by a party opposing the motion, consolidation should be granted where common questions of law or fact exist." (Mattia, supra., at page 527.) In Moretti, supra., the First Department addressed a set of circumstances nearly identical to the case at bar. In that case, the trial court consolidated a summary non-payment proceeding in the New York City Civil Court with a Supreme Court action involving common questions of law and fact. The First Department held in its unanimous affirmance: The IAS Court was within its discretion in g ranting removal and consolidation, in the interest of judicial economy, as both cases involved common questions of law and fact and plaintiff would otherwise be unable to obtain full redress or her rights. Neither plaintiff's negligence claims nor her request for injunctive relief could be adjudicated in the nonpayment proceeding (see, Atherton v. 21 E. 92nd St. Corp., 149 AD2d 354, 539 N.Y.S.2d 933). The delay in determination of the nonpayment proceeding will not cause prejudice sufficient to justify denial of the motion (see, Amtorg Trading Corp. v. Broadway & 56th St. Assocs., 191 AD2d 212, 594 N.Y.S.2d 204), as the parties' real controversy concerns money, not possession of the premises, and as interest may be awarded if defendant prevails (CPLR 5001), Moretti, supra., at 191, 192.