Basile v Wiggs

Basile v Wiggs 2013 NY Slip Op 07146 Decided on November 6, 2013 Appellate Division, Second 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 November 6, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2012-07766
(Index No. 17689/10)

[*1]Christopher Basile, appellant,

v

Sherry Wiggs, respondent.




Richard A. Medina, New York, N.Y., for appellant.


DECISION & ORDER

In an action to recover damages for defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 9, 2012, as granted the defendant's cross motion to consolidate two actions, both entitled Basile v Wiggs, pending in the same court under Index Nos. 17689/10 and 9974/11, respectively, and to change the venue of the consolidated action from Kings County to Westchester County.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff contends that the Supreme Court violated the doctrine of law of the case in granting the defendant's cross motion to consolidate two actions, both entitled Basile v Wiggs, pending in the Supreme Court, Kings County, under Index Nos. 17689/10 and 9974/11, respectively, and to change the venue of the consolidated action from Kings County to Westchester County, because a prior order of the same court had denied the defendant's cross motion. However, to the extent that the court's determination may have violated the law of the case established by the prior order of the Supreme Court, this Court is not bound by the law of the case established by that order (see Pincus v Wells, 35 AD3d 569, 571; Keith v Schulman, 265 AD2d 380; Padela v Rosen & Weidberg, 200 AD2d 722).

On the merits, that branch of the defendant's cross motion which was to consolidate the two actions was correctly granted, since common questions of law or fact exist, and the plaintiff failed to show that prejudice to a substantial right would result from consolidation (see CPLR 602[a]; GAM Prop. Corp. v Sorrento Lactalis, Inc., 41 AD3d 645, 646; Dukhvalov v Pshierer, 15 AD3d 334). Moreover, under the circumstances of this case, change of venue of the consolidated action from Kings County to Westchester County was proper (see Ingenito v Wantagh Racket Sports, Inc., 47 AD3d 887, 887-888; Padela v Rosen & Weidberg, 200 AD2d at 724).
MASTRO, J.P., LEVENTHAL, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court