172 Van Duzer Realty Corp. v 878 Educ., LLC

172 Van Duzer Realty Corp. v 878 Educ., LLC 2018 NY Slip Op 06218 Decided on September 25, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 25, 2018
Friedman, J.P., Kapnick, Kahn, Oing, JJ.
7126N 653767/13

[*1] 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.

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 AD2d 570, 571 [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 AD3d 543 [1st Dept 2013], mod 24 NY3d 528 [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 AD3d 814 [1st Dept 2016]). While the three actions share some common facts, individual issues predominate, making consolidation inappropriate (see Bender v Underwood, 93 AD2d 747 [1st Dept 1983]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 25, 2018

CLERK