Mattia v. Food Emporium, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 12, 1998, which granted that branch of the defendant’s motion which was to jointly try this action in Westchester County with an action entitled Mattia v Great Ail. & Pac. Tea Co., pending in the Supreme Court, New York County, under Index No. 108527/97. Ordered that the order is affirmed, with costs. A motion to consolidate actions or for a joint trial pursuant to CPLR 602 (a) rests in the sound discretion of the trial court. Absent a showing of prejudice to a substantial right by a party opposing the motion, consolidation should be granted where common questions of law or fact exist. In addition, where actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present, which decision is also addressed to the sound discretion of the court (see, McDutchess Bldrs. v 528 Dutchess Knolls, 244 AD2d 534; Rodgers v Worrell, 214 AD2d 553; Gomez v Jersey Coast Egg Producers, 186 AD2d 629). In this case, we find no basis to disturb the Supreme Court’s decision to jointly try the actions in Westchester County. Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.