Curriere v. Roeill — 55 Misc. 2d 1049

Majority

p. 1049

Alice Curriere et al., Plaintiffs, v. Marie I. Roeill et al., Defendants. (And Another Action.)

Supreme Court, Special Term, Nassau County,

November 21, 1967.

Kremer <& Gallop for plaintiffs in Action No. 1. Schaffner & Bogan for defendants in Action No. 1. Leavitt & Leavitt for

p. 1050

plaintiffs in Action No. 2. Henry Wolf man for defendant in Action No. 2.

Motion by plaintiffs in Action No. 2 pending in First District Court, Nassau County, to consolidate such action with Action No. 1, now pending in the City Court of Long Beach, is denied.

As stated by Professor Joseph M. McLaughlin in the Supplementary Practice Commentary (McKinney’s Cons. Laws of N. Y., Book 7B, pt. 2 [1967 Cum. Supp.], CPLR 602, p. 23) “ the Supreme Court lacks statutory power to consolidate actions pending in lower courts.” The Supreme Court “ may transfer to itself any action or proceeding originated or pending in another court within the judicial department ” (N. Y. Const., art. VI, § 19, subd. a)'. However, CPLR 325 limits the Supreme Court’s power of removal to cases where the court in which the action is pending lacks jurisdiction to grant the relief sought in the action. “ In other words,” as further stated by Professor McLaughlin in the Supplementary Practice Commentary, “ the Supreme Court may consolidate inferior actions only where one of them is removed to the Supreme Court, and such removal can presently be effected only where the inferior court lacks jurisdiction to grant the relief sought in the complaint. [Grimaldi v. Grasiano, 48 Mise 2d 54 [1965], affd. 24 A D 2d 1080 .] ” In neither of the instant actions do the inferior courts lack jurisdiction to grant the relief therein requested. Therefore, the motion to consolidate must be denied.