Opinion
November 6, 1989
Appeal from the Supreme Court, Westchester County (Buell, J.).
Ordered, that the order is reversed, on the law, with costs, the motion is granted, and the summary proceeding now pending in the City Court of the City of Yonkers entitled Florio v McDermott is removed to the Supreme Court, Westchester County, and consolidated with the present action.
The plaintiff demonstrated that the two pending suits involve "common question[s] of law or fact" (CPLR 602 [a]) so that the removal of the summary proceeding to the Supreme Court, and its consolidation with the pending action for a declaratory judgment, is appropriate in light of the absence of any claim of prejudice by the defendant Florio (see, CPLR 602 [a], [b]; Del Bello v Wilmot, 59 A.D.2d 1023; Street of Shops v Clifford, 20 A.D.2d 622; cf., Earbert Rest. v Little Luxuries, 99 A.D.2d 734). In this case, not only did Florio not claim prejudice, but he defaulted in responding to the motion for consolidation, and thus may be deemed to have consented to the relief requested. Thompson, J.P., Bracken, Brown, Sullivan and Rosenblatt, JJ., concur.