Opinion
February 2, 1967
Order entered January 12, 1965, denying plaintiffs' motion to consolidate two actions unanimously reversed, on the law and the facts and as a matter of discretion, and motion granted to the extent of consolidating Action No. 1 pending in New York County with Action No. 2 pending in Kings County, with one bill of $30 costs and disbursements to plaintiffs against all defendants. The two actions are grounded in malpractice. The infant plaintiff was born in Beth El Hospital and that institution, together with certain members of its staff, are the defendants in Action No. 2. These defendants are charged with negligently causing a condition of retrolental fibroplasia. The infant was transferred to Abraham Jacobi Hospital, a city hospital, and the city and members of the staff of that hospital are the defendants in Action No. 1. The charge against these defendants is that by a negligent failure properly to diagnose and treat the infant plaintiff's condition, that condition was aggravated. The mere statement of these claims shows that the continuing course of a negligently induced abnormality is involved in both. An extensive duplication of medical testimony is virtually certain. In the event of a recovery by the plaintiff, contrary contentions by the respective defendants as to causation and extent of damage caused by each can be resolved. While the theories of liability for the respective defendants are not identical, the distinctions are not too difficult for a jury to understand and determine. The advantages resulting from consolidation outweigh the arguments that would prevent it. No difficulty is presented by the fact that the actions are pending in different counties ( Smith v. Witteman Co., 10 A.D.2d 793). As Action No. 2 in Kings County was the first action begun, it is the appropriate one to remain as the consolidated action. Settle order on notice.
Concur — Stevens, J.P., Steuer, Capozzoli and Rabin, JJ.