F & K Supply, Inc. v. Johnson

—Mahoney, J. Appeal from an order of the Supreme Court (Canfield, J.), entered September 14, 1992 in Ulster County, which denied plaintiffs motion to consolidate two pending actions. The sole issue in this case is whether Supreme Court abused its discretion in denying plaintiffs motion to consolidate its pending Supreme Court action against defendant for breach of the noncompetition provisions contained in the parties’ employment contract with a small claims action commenced by defendant to recover from plaintiff the $751.74 balance allegedly due for his last week’s salary. The court concluded not only that no common questions of fact or law existed between the two actions (reasoning that the Supreme Court action spoke to defendant’s acts after he left employment while the small claims action concerned acts which occurred while defendant was still in plaintiffs employ), but, most significantly, that consolidation would substantially prejudice the small claims action inasmuch as it already had been scheduled for trial whereas discovery had not yet even begun in the Supreme Court action. Indeed, it appears from a reading of the record that the small claims trial actually had to be and continues to be delayed because of pendency of the consolidation motion. It being well settled that the existence of substantial prejudice in the form of delay in the trial of another action is [815] sufficient reason to deny consolidation even in situations where common questions of law or fact exist (see, Nicolla v Nicolla, 128 AD2d 998; see also, Stephens v Allstate Ins. Co., 185 AD2d 338; Steuerman v Broughton, 123 AD2d 681; Adler v Adler, 57 AD2d 1014), we see no abuse of discretion in Supreme Court’s denial of the motion. Mikoll, J. P., Mercure, Cardona and Casey, JJ., concur. Ordered that the order is affirmed, with costs.