I. Burack, Inc. v. Rosner's Supply Corp.

—In two actions, inter alia, to recover damages for breach of contract, the defendants Rosner’s Supply Corporation and Richard Burack appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered August 25, 1995, which denied their motion to dismiss the complaint in Action No. 2 and, upon granting the plaintiffs cross motion for consolidation, dismissed the complaint in Action No. 1 on the ground that it was subsumed by the complaint in Action No. 2. Ordered that the order is affirmed, with costs. Due to the presence, inter alia, of common questions of law and fact, and the absence of prejudice to a substantial right of the appellants, the court did not improvidently exercise its discretion by granting the plaintiffs motion for consolidation (see, Flaherty v RCP Assocs., 208 AD2d 496; Stephens v Allstate Ins. Co., 185 AD2d 338; Chinatown Apts, v New York City Tr. Auth., 100 AD2d 824; Fleck v Putterman, 60 AD2d 904), and thereupon dismissing the complaint in the first action (see, Singh v Kalish, 153 AD2d 621). We have considered the appellants’ remaining contentions and find them to be without merit. Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.