Opinion
March 12, 1993
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Callahan, J.P., Balio, Doerr, Boomer and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: We conclude that Supreme Court did not abuse its discretion in joining the two actions for trial. The power to order joint trials rests in the sound discretion of the trial court (Ventures Intl. v Uppstrom, 166 A.D.2d 321) and where common questions of law or fact exist, consolidation or joint trial is warranted unless the parties opposing the motion demonstrate prejudice to a substantial right (Berman v. Greenwood Vil. Community Dev., 156 A.D.2d 326, 326-327). The defense of truth interposed in the answer to plaintiffs' first action for slander involves proof of facts common to the second action for legal malpractice, conversion, fraud and breach of fiduciary responsibility. Appellants will not be prejudiced by joinder for trial. Although they will be tried together, the actions will maintain their separate identities and appellants' present counsel will not be disqualified as trial counsel in the second action.
We further conclude that the court properly changed the venue of the second action from Niagara County to Erie County because the action first commenced was brought in Erie County (see, Newell v. Niagara Mohawk Power Corp., 52 A.D.2d 664; Padilla v Greyhound Lines, 29 A.D.2d 495).