Opinion
04-29-2015
WEISS & BIHELLER, MDSE, CORP., et al., appellants, v. PRECIOSA USA, INC., respondent.
Peter J. Constantine, Yonkers, N.Y., for appellants. Hiscock & Barclay, LLP, New York, N.Y. (Philip A. Bramson of counsel), for respondent.
Peter J. Constantine, Yonkers, N.Y., for appellants.Hiscock & Barclay, LLP, New York, N.Y. (Philip A. Bramson of counsel), for respondent.
Opinion
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated January 16, 2014, which denied their motion to consolidate this action with an action entitled Preciosa USA, Inc. v Weiss & Biheller, MDSE, Corp., pending in the Supreme Court, Westchester County, under Index No. 62301/13.
ORDERED that the order is affirmed, with costs.
“Where common questions of law or fact exist, a motion to consolidate should be granted absent a showing of prejudice to a substantial right by the party opposing the motion” (Kally v. Mount Sinai Hosp., 44 A.D.3d 1010, 1010, 844 N.Y.S.2d 415 ; see Nigro v. Pickett, 39 A.D.3d 720, 833 N.Y.S.2d 655 ). However, a motion to consolidate should be denied where the two actions do not share common questions of law or fact (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 757, 969 N.Y.S.2d 796 ). Contrary to the plaintiffs' contention, the two subject actions do not share common questions of law or fact. Accordingly, the Supreme Court properly denied the plaintiffs' motion to consolidate the two actions.
RIVERA, J.P., ROMAN, SGROI and DUFFY, JJ., concur.