Opinion
April 2, 1979
Appeal by plaintiffs in Actions Nos. 1 and 2 from an order of the Supreme Court, Queens County, dated December 21, 1977, which (1) denied their motion to consolidate the actions and to dismiss the affirmative defenses in Action No. 2 and (2) granted the application of the defendant in Action No. 2 for summary judgment dismissing the complaint in that action. Order reversed, on the law, with $50 costs and disbursements, the motion of defendant in Action No. 2 for summary judgment is denied and plaintiffs' motion is granted only to the extent of directing that Action No. 2 be consolidated for trial with Action No. 1 and is otherwise denied. The pleadings raise triable issues of fact which may be resolved only upon trial. Since the actions involve common questions of fact and are both pending before the court, consolidation is proper (see CPLR 602, subd [a]). Hopkins, J.P., Suozzi, Cohalan and Margett, JJ., concur.