Maldonado v. Whiting ( 1985 )

— In three negligence actions arising out of a single accident, plaintiffs in action No. 3 appeal from an order of the Supreme Court, Suffolk County (DeLuca, J.), entered December 29, 1983, which granted respondent Rivera’s (a defendant in actions Nos. 1 and 3) motion for “consolidation and joint trial” to the extent that it removed action No. 3 from Bronx County to Suffolk County and directed a joint trial of action No. 3 with actions Nos. 1 and 2 pending in Suffolk County.

Order modified, by deleting the provisions thereof which directed that the joint trial be held in Suffolk County and substituting therefor a provision directing that the joint trial be held in Bronx County, with the trial court to determine the order in which each party shall open and close. As so modified, order affirmed, with costs to appellants payable by respondent Rivera.

Generally, where there is to be a joint trial of actions commenced in different counties, venue should be placed in the county in which the first action was instituted (Maciejko v Jarvis, 99 AD2d 799). The record discloses that action No. 3 was instituted first. Moreover, at the time respondent Rivera’s motion was decided, action No. 3 was on the Trial Calendar in Bronx County set down for a day certain for trial, while in actions Nos. 1 and 2, discovery had not yet been completed, nor had said actions been noticed for trial. Under the circumstances, it was an abuse of discretion to have granted respondent Rivera’s motion to the extent that it requested that the joint trial be held in Suffolk County.

As it appears that discovery has now been completed in actions Nos. 1 and 2, and an early trial can be had in Bronx County, we have modified the order appealed from to provide for removal of said actions to Bronx County where a joint trial can be had with action No. 3. Mangano, J. P., Brown, Rubin and Lawrence, JJ., concur.