H. C. H. Contractors, Inc. v. Docutel Corp.

Jan 20, 1975
Versions:47 A.D.2d 539
363 N.Y.S.2d 112
1975 N.Y. App. Div. LEXIS 8603

In an action, inter alla, to foreclose a mechanic’s lien, defendant Docutel Corporation appeals from an order of the Supreme Court, Queens County, entered July 8, 1974, which (1) granted plaintiff’s motion to dismiss the third affirmative defense and all counterclaims of said defendant, with leave to replead the affirmative defense, and (2) denied its cross motion for consolidation or joint trial of this action with an action pending in the Supreme Court, Nassau County. Order reversed, with $20 costs and disbursements, plaintiff’s motion denied and appellant’s cross motion granted to the extent of ordering a joint trial in Nassau County. Common to the complaints in both the Queens County and the Nassau County actions is the allegation that plaintiff, as subcontractor, provided labor and "services in *540connection, with the installation of a baggage handling system in the Pan American Terminal Building at John F. Kennedy International Airport, but that appellant, as contractor, failed to fully compensate plaintiff. The Nassau action is based upon a contract between plaintiff and appellant, executed March 5,1971, for installation of the system, while the Queens action is based upon a contract between these parties, executed November 13, 1972, for the performance of additional work on the identical system. In both actions, appellant’s counterclaims allege that plaintiff breached the terms of the March 5 agreement and was negligent in the performance of its work thereunder. In the third affirmative defense in the Queens action, appellant asserts that, in total, plaintiff owes moré to appellant than is sought by plaintiff in its complaint. On these facts, a joint trial is appropriate to avoid duplicate trials of common issues (CPLR 602, subd. [a]). Both actions concern the identical construction project and the parties’ performance of their contractual obligations relative to that project. Hopkins, Acting P. J., Martuscello, Latham, Benjamin and Munder, JJ., concur.