McDermott v. Florio , 155 A.D.2d 417 ( 1989 )

— In an action for a judgment declaring, inter alla, that the plaintiff is the primary tenant in occupancy of a certain apartment, and for related monetary and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Buell, J.), dated October 7, 1988, which denied his motion to consolidate the action with a summary proceeding now pending in the City Court of the City of Yonkers entitled Florio v McDermott.

Ordered, that the order is reversed, on the law, with costs, the motion is granted, and the summary proceeding now pending in the City Court of the City of Yonkers entitled Florio v McDermott is removed to the Supreme Court, Westchester County, and consolidated with the present action.

The plaintiff demonstrated that the two pending suits involve "common question[s] of law or fact” (CPLR 602 [a]) so that the removal of the summary proceeding to the Supreme Court, and its consolidation with the pending action for a declaratory judgment, is appropriate in light of the absence of any claim of prejudice by the defendant Florio (see, CPLR 602 [a], [b]; Del Bello v Wilmot, 59 AD2d 1023; Street of Shops v Clifford, 20 AD2d 622; cf., Earbert Rest. v Little Luxuries, 99 AD2d 734). In this case, not only did Florio not claim prejudice, but he defaulted in responding to the motion for consolidation, and thus may be deemed to have consented to the relief requested. Thompson, J. P., Bracken, Brown, Sullivan and Rosenblatt, JJ., concur.