Opinion
May 7, 1999
Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Consolidation.
Present — Pine, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.
Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced an action seeking damages for personal injuries sustained by Melody Smith (plaintiff) in an automobile accident (action No. 1). Defendants therein moved to consolidate that action with a medical malpractice action subsequently commenced by plaintiffs against a physician who treated plaintiff for the injuries she sustained in the automobile accident (action No. 2). Supreme Court did not abuse its discretion in denying the motion ( see, Dias v. Berman, 188 A.D.2d 331). Where common questions of law or fact exist, consolidation should be granted unless the party opposing consolidation establishes prejudice to a substantial right ( see, Zupich v. Flushing Hosp. Med. Ctr., 156 A.D.2d 677). Although the fact that actions are at different stages of discovery, generally is insufficient to establish prejudice to a substantial right ( see, Collazo v. City of New York, 213 A.D.2d 270; Zimmerman v. Mansell, 184 A.D.2d 1084, 1085), here plaintiffs demonstrated that, when the consolidation motion was made, discovery was complete, a note of issue was filed and the trial was scheduled in action No. 1, while action No. 2 was still in the pleading stage. Thus, in the circumstances of this case, plaintiffs have established prejudice to a substantial right ( see, Dias v. Berman, supra; Rennert Diana Co. v. Kin Chevrolet, 137 A.D.2d 589; Mulligan v. Farmingdale Union Free School Dist. No. 22, 133 A.D.2d 617; see also, Gardner v. City of New York, 102 A.D.2d 800, 801).