Brown v. Brown , 1973 N.Y. App. Div. LEXIS 3921 ( 1973 )

In a consolidated action, wherein the nature and object of Action No. 1 is to set aside a separation agreement, of Action No. 2 is to recover damages under such separation agreement, and of Action No. 3 is a Family Court support proceeding; Marlon Brown, plaintiff in Action No. 1 and defendant in Action No. 2, appeals: (1) from a judgment of the Supreme Court, Kings County, dated October 10, 1972, awarding damages after assessment, in the aggregate sum of $12,061.60 to Barbara Brown, defendant in Action No. 1 and plaintiff in Action No. 2; and (2) from so much of an order of the same court, dated May 17, 1972, as denied his motion to consolidate Action No. 3 with Actions Nos. 1 and 2, and granted the cross motion of Barbara Brown for summary judgment in her favor for arrears in alimony in Action No. 2, and for dismissal of the complaint in Action No. 1. Judgment and order reversed, insofar as appealed from, without costs; cross motion for summary judgment denied; and Action No. 3 ordered to be consolidated with Actions Nos. 1 and 2. In our opinion, there were questions of fact which required the denial of summary judgment in Actions Nos. 1 and 2, and a trial of the issues raised. On such trial, all the differences between the parties should be resolved, including the issues raised in Action No. 3. Accordingly, while the order under review properly consolidated Actions Nos. 1 and 2, it erroneously failed to join Action No. 3 therewith, since all three actions raise common questions of law and fact. Under the circumstances, judgment in favor of respondent Barbara Brown is premature. Hopkins, Acting P. J., Latham, Gulotta, Christ and Brennan, JJ., concur.