Nicolla v. Nicolla

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAHONEY
• Citation: Nicolla v. Nicolla, 513 N.Y.S.2d 305, 128 A.D.2d 998 (N.Y. App. Div. 1987)
• Decision Date: 19 March 1987
• Parties: Debra T. NICOLLA, Respondent, v. Joseph R. NICOLLA, Appellant. (And Another Related Action.)

Page 305

513 N.Y.S.2d 305

128 A.D.2d 998

Debra T. NICOLLA, Respondent, v. Joseph R. NICOLLA, Appellant (And Another Related Action.)

Supreme Court, Appellate Division Third Department.

March 19, 1987.

McNamee, Lochner, Titus & Williams, P.C. (Stanley A. Rosen, Albany, of counsel), for appellant.

Robert W. Kahn, P.C. (Florence M. Richardson, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, MAIN, WEISS and LEVINE, JJ.

MAHONEY, Presiding Judge.

Appeal from an order of the Supreme Court (Conway, J.), entered May 12, 1986 in Albany County, which granted plaintiff's motion to consolidate two actions.

The parties were married on June 8, 1980 and have lived separately since June 1984. In December 1984, plaintiff commenced an action seeking divorce on the ground of cruel and inhuman treatment. In his answer, defendant admitted the material allegations of the complaint and concurred in the request for a divorce. Disclosure was conducted from the time of commencement of the action until November 1985. A Trial Term note of issue was filed in March 1985 and, on December 18, 1985, the action was granted a trial preference.

In March 1986, plaintiff commenced a second action, also seeking divorce, this time alleging adultery. Defendant answered, denying the material allegations of the complaint and raising, as an affirmative defense, the pendency of the first action for divorce. Plaintiff moved to consolidate the actions. Supreme Court granted the motion and this appeal by defendant ensued.

This court has held that the "power to order consolidation rests in the sound discretion of the court and, where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right" (Cushing v. Cushing, 85 A.D.2d 809, 445 N.Y.S.2d 636). The prospect that consolidation will cause a delay in the trial of the other action is a factor to be considered in determining whether a substantial right of the party opposing consolidation is prejudiced, particularly where the first action is ready for trial (see, La Torre v. Mountcastle, 88 A.D.2d 724, 725, 451 N.Y.S.2d 280; Biederman v. Yorks, 9 A.D.2d 764, 765, 192 N.Y.S.2d 447; Halpern v. Rodway, 3 A.D.2d 941, 163 N.Y.S.2d 806; Wheeler v. Meadowbrook Transp. Corp., 3 A.D.2d 763, 160 N.Y.S.2d 275).

In the instant case, plaintiff's first action, wherein defendant admitted the material allegations of the complaint and concurred in the request for a divorce, had been on the trial calendar for one year before the second action was commenced and all disclosure had been completed. Consolidation will surely result in delay since disclosure will have to be completed...