Williams v. Mascitti — 71 A.D.2d 813

Majority

p. 813

Mitchell T. Williams et al., Plaintiffs, v Joseph R. Mascitti, Defendant. (Action No. 1.) Theron Robinson et al., Doing Business as Robinson, Williams & Angeloff, Respondents, v Joseph R. Mascitti et al., Appellants. (Action No. 2.)

Orders unanimously reversed, without costs, and motion granted. Memorandum: It was an improvident exercise of discretion for Special Term to deny a joint trial or to condition its approval thereof upon stipulation that defendants waive a jury. The pleadings disclose a commonality of context from which both actions emanate. While a lengthy prejudicial delay resulting from joinder would require denial of the motion, plaintiffs have failed to show delay which would prejudice a substantial right of defendants. The burden of showing that joinder will prejudice a substantial right rests upon the party opposing the motion (146 North Salina St. v Unigard Jamestown Mut. Ins. Co., 54 AD2d 1129 ). Absent such a showing, the existence of common questions of law or fact justify the grant of a motion for joint trial (CPLR 602, subd [a]; Wilhelmsen v Bolán Sales, 54 AD2d 615 ). Where feasible, joint trial should be had to reduce the cost of litigation, make more economical use of court time, and speed the

p. 814

disposition of cases (Matter of City of Rochester v Levin, 57 AD2d 700 ). Since it appears that there are common questions of fact as to the conduct of parties in an attorney-client and business relationship, a joint trial is appropriate (L. G. J. K. Realty Corp. v Drimer, 48 AD2d 670 ). (Appeal from orders of Monroe Supreme Court—joint trial.) Present—Cardamone, J. P., Simons, Hancock, Jr., Callahan and Witmer, JJ.

Cases cited

City of Rochester v. Levin 57 AD2d 700 N.Y. App. Div. 1977-04-07 p. 814