Opinion
7126N Index 653767/13
09-25-2018
172 VAN DUZER REALTY CORP., Plaintiff–Appellant, v. 878 EDUCATION, LLC, Defendant–Respondent, Globe Institute of Technology, Inc., et al., Defendants.
Cox Padmore Skolink & Shakarchy LLP, New York (Noah Potter of counsel), for appellant. Martin Oliner, Lawrence, for respondent.
Cox Padmore Skolink & Shakarchy LLP, New York (Noah Potter of counsel), for appellant.
Martin Oliner, Lawrence, for respondent.
Friedman, J.P., Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 6, 2017, which denied plaintiff's motion to consolidate three actions, unanimously affirmed, without costs.
It was a provident exercise of discretion for the court to deny the motion to consolidate, as there are insufficient common questions of law and fact presented (see J. Henry Schroder Bank & Trust Co. v. South Ferry Bldg. Co. , 88 A.D.2d 570, 571, 451 N.Y.S.2d 86 [1st Dept. 1982] [citing CPLR 602 ] ). The 2007 action, brought by a non-party to the other two actions, arises out of a loan default, with third-party contract claims between current and prior asset holders of the allegedly defaulting party. The 2009 action is a landlord-tenant action ( 172 Van Duzer Realty Corp. v. Globe Alumni Student Assistance Assn., Inc. , 102 A.D.3d 543, 959 N.Y.S.2d 39 [1st Dept. 2013], mod 24 N.Y.3d 528, 2 N.Y.S.3d 39, 25 N.E.3d 952 [2014] ), and in the 2013 action the landlord seeks to rescind the asset transfer agreement in furtherance of attempting to satisfy any judgment it may enter in the 2009 action ( 172 Van Duzer Realty Corp. v. 878 Educ., LLC , 142 A.D.3d 814, 37 N.Y.S.3d 117 [1st Dept. 2016] ). While the three actions share some common facts, individual issues predominate, making consolidation inappropriate (see Bender v. Underwood , 93 A.D.2d 747, 461 N.Y.S.2d 301 [1st Dept. 1983] ).