Stefanopoulos v Action Airport Serv. of L.I., Inc.

Stefanopoulos v Action Airport Serv. of L.I., Inc. 2006 NY Slip Op 09453 [35 AD3d 590] December 12, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Jimmy Stefanopoulos et al., Appellants,
v
Action Airport Service of L.I., Inc., et al., Respondents.

—[*1]In an action, inter alia, to recover damages for violations of General Business Law § 349, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated July 7, 2005, which denied their motion, among other things, to consolidate this action with an action entitled Stefanopoulos v Ollies Trans., pending in the Supreme Court, Kings County, under index No. 20705/01, and for leave to enter a judgment against all defendants except Lawrence Blessinger, Sr., and Marianne Blessinger upon their failure to appear or answer.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

Under the circumstances, the court providently exercised its discretion in denying that branch of the plaintiffs' motion which was to consolidate this action with an action entitled Stefanopoulos v Ollies Trans., pending in the Supreme Court, Kings County, under index No. 20705/01 (hereinafter the Kings County action) (see Beerman v Morhaim, 17 AD3d 302, 303 [2005]; compare Perini Corp. v WDF, Inc., 33 AD3d 605 [2006]). The court also [*2]properly denied the plaintiffs' request for leave to amend the complaint in the Kings County action since the plaintiffs cannot obtain such relief in this action. Moreover, the court properly denied that branch of the plaintiffs' motion which was for leave to enter a judgment against all defendants except Lawrence Blessinger, Sr., and Marianne Blessinger, upon their failure to appear or answer with respect to the original summons and complaint since, during the pendency of the motion, the plaintiffs served an amended summons and complaint (see generally Weber v Goss, 18 AD3d 540 [2005]; Monter v Massachusetts Mut. Life Ins. Co., 12 AD3d 650, 651 [2004]; Williams v Feig, 12 AD3d 504 [2004]). Schmidt, J.P., Rivera, Skelos and Lunn, JJ., concur.