Opinion
2014-03-19
NEW YORK TILE WHOLESALE CORP., appellant, v. THOMAS FATATO REALTY CORP., et al., defendants. (Action No. 1) New York Tile Wholesale Corp., appellant, v. Herrick, Feinstein LLP, et al., respondents, et al., defendants. (Action No. 2).
Feder Kaszovitz LLP, New York, N.Y. (Murray L. Skala, Ezio Scaldaferri, and Bruce Robins of counsel), for appellant. Herrick, Feinstein LLP, New York, N.Y. (Scott E. Mollen, Jennifer Smith Finnegan, and Darlene Fairman of counsel), respondent pro se and for respondent Roman A. Bejger.
Feder Kaszovitz LLP, New York, N.Y. (Murray L. Skala, Ezio Scaldaferri, and Bruce Robins of counsel), for appellant. Herrick, Feinstein LLP, New York, N.Y. (Scott E. Mollen, Jennifer Smith Finnegan, and Darlene Fairman of counsel), respondent pro se and for respondent Roman A. Bejger.
In an action, inter alia, to recover damages for breach of a lease and tortious interference with the lease (Action No. 1), and a related action, among other things, to recover damages for fraud and tortious interference with contract (Action No. 2), the plaintiff in both actions appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 3, 2012, which granted the motion of Herrick, Feinstein LLP, and Roman A. Bejger, defendants in Action No. 2, to join both actions for trial and to place venue of the joint trial in Kings County.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced an action, inter alia, to recover damages for breach of a lease and tortious interference with the lease (Action No. 1), and commenced a separate action, among other things, to recover damages for fraud and tortious interference with contract (Action No. 2), based on allegedly fraudulent representations made in conjunction with Action No. 1. Herrick, Feinstein LLP, and Roman A. Bejger (hereinafter together the Herrick defendants), defendants in Action No. 2, moved to join both actions for trial and to place venue of the joint trial in Kings County, where Action No. 1 was commenced. In an order dated July 3, 2012, the Supreme Court granted the motion.
The determination of a motion seeking a joint trial pursuant to CPLR 602(a) “rests within the sound discretion of the trial court” ( Glussi v. Fortune Brands, 276 A.D.2d 586, 587, 714 N.Y.S.2d 516). “When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right” ( Pierre–Louis v. DeLonghi Am., Inc., 66 A.D.3d 855, 856, 887 N.Y.S.2d 632). “ ‘The mere desire to have one's dispute heard separately does not, by itself, constitute a “substantial right” ’ ” ( Lingfei Sun v. City of New York, 99 A.D.3d 673, 675, 952 N.Y.S.2d 98,cert. denied––– U.S. ––––, 134 S.Ct. 92, 187 L.Ed.2d 32, quoting Matter of Vigo S.S. Corp. [Marship Corp. of Monrovia], 26 N.Y.2d 157, 162, 309 N.Y.S.2d 165, 257 N.E.2d 624,cert. denied sub nom. Frederick Snare Corp. v. Vigo Steamship Corp., 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46, quoting Matter of Symphony Fabrics Corp. [Benson Silk Mills], 12 N.Y.2d 409, 412, 240 N.Y.S.2d 23, 190 N.E.2d 418), nor is “mere delay ... a sufficient basis to justify the denial of a joint trial” ( Alizio v. Feldman, 97 A.D.3d 517, 517, 947 N.Y.S.2d 326).
Contrary to the plaintiff's contention, the Supreme Court properly determined that the subject actions involved common questions of law or fact, and that the plaintiff failed to demonstrate that a joint trial would result in prejudice to a substantial right ( see Alizio v. Feldman, 97 A.D.3d at 517, 947 N.Y.S.2d 326;Padela v. Rosen & Weidberg, 200 A.D.2d 722, 607 N.Y.S.2d 89).
The plaintiff's remaining contentions are either not properly before this Court or without merit.
Accordingly, the Supreme Court providently exercised its discretion in granting the Herrick defendants' motion to join the subject actions for trial and to place venue of the joint trial in Kings County. RIVERA, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.