Mideal Homes Corp. v. L & C Concrete Work, Inc., 1
| Decision Date | 08 November 1982 |
| Docket Number | No. 1,1 |
| Citation | 90 A.D.2d 789,455 N.Y.S.2d 394 |
| Court | New York Supreme Court — Appellate Division |
| Parties | MIDEAL HOMES CORPORATION, Appellant, v. L & C CONCRETE WORK, INC. et al., Respondents. (Action) (and two other actions). |
Thomas Fernandes, Mineola, for appellant.
Lerner & Lippe, West Hempstead, for respondents L&C Concrete Work, Inc. and Vincent Lucarelli.
Before DAMIANI, J.P., and THOMPSON, BRACKEN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
Appeal by Mideal Homes Corp. from so much of an order of the Supreme Court, Nassau County (VELSOR, J.), dated July 14, 1981, as denied its application for a joint trial of action number 2 with action number 1 and action number 3.
Order reversed insofar as appealed from, without costs or disbursements, and appellant's application granted to the extent that there shall be a joint trial of all three actions.
Prior to reaching appellant's arguments, we note that an issue has been raised concerning the timeliness of the appeal. Since a copy of the order and written notice of its entry was never served upon the appellant, the 30-day period to take an appeal as of right never began to run (CPLR 5513, subd. see Malvin v. Schwartz, 65 A.D.2d 769, 409 N.Y.S.2d 787 affd. 48 N.Y.2d 693, 422 N.Y.S.2d 58, 397 N.E.2d 748).
We now turn to the facts of the instant case. Appellant and L & C Concrete made arrangements for L & C Concrete to construct concrete foundations on two parcels of land owned by appellant. J & M Ready Mix Products was to supply the necessary concrete. Appellant asserts that both sets of arrangements were contained in one oral contract made on July 15, 1979. L & C Concrete concedes that the arrangements for the first parcel of land were part of a contract entered into on July 15, 1979. However, it claims the arrangements for the second parcel of land were contained in a separate contract.
Appellant was not satisfied with the foundation constructed on the first parcel of land and therefore commenced action number 1 to recover damages against L & C Concrete, J & M Ready Mix Products, and their officers for breach of contract. Thereafter L & C Concrete commenced two separate actions against appellant and its principal officer. The first of these actions (action number 2) was to recover for goods and services performed in constructing the foundation on the second parcel. The other action (action number 3) was for work done on the first parcel.
Once issue was joined, appellant moved to consolidate the three actions. In an order dated July 14, 1981, Special Term directed a joint...
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