Mangel Stores Corp. v. Drobes 42 A.D.2d 539

Order, Supreme Court, New York County, entered March 27,1973, reversed, in the exercise of discretion, and the motion to remove two actions from Civil to 'Supreme Court and to consolidate them with the pending Supreme Court action granted. Appellant shall recover of respondents $40 costs and disbursements of this appeal. The main issue in these related cases, pleaded by appellant Mangel in its Supreme Court complaint and as affirmative defenses in the Civil Court actions, is whether fraud was per*540petrated by the other parties in their relationships with Mangel. All three cases involve related transactions, and there is sufficient identity of interest amongst the parties other than Mangel to justify consolidation; indeeed, it is claimed that Mangel is deprived of the return of the advances for which it sues by reason of the manipulation of these advances by and between the others. The sole justification for denial of consolidation is the claim that, Civil Court calendars being up to date, consolidation might unduly delay trial of the issues. There is no undue delay of trial of commercial issues in Supreme Court, and, in addition, Mangel, seeking sums in excess of those sought by the others, has every incentive to move toward an early trial. Concur — Stevens, P. J., Markewich, Kupferman and Steuer, JJ.; Nunez, J., dissents in the following memorandum: I agree with Special Term that consolidation is sought for purposes of delay only and that there is no showing of sufficient common issues to warrant consolidation. Basically, it is a matter of discretion. No abuse has been shown. On the contrary, the application was properly denied and the order appealed from should be affirmed.