SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 9, 1968
JOHN J. KEENAN, APPELLANT,
AMERICAN BRIDGE DIVISION-UNITED STATES STEEL CORP. ET AL., RESPONDENTS. (AND ANOTHER ACTION.)
Appeals from two orders of the Supreme Court, Nassau County, both dated September 14, 1967, one granting defendants' motions to dismiss the complaint in action No. 2 on the ground of the pendency of another action between the parties for the same cause (CPLR 3211, subd. [a], par. 4) and the other denying plaintiff's motion to consolidate the actions.
Christ, Acting P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.
Orders reversed, on the law, with one bill of $10 costs and disbursements jointly against respondents filing separate briefs; defendants' motions denied; and plaintiff's motion granted. No questions of fact were considered. Plaintiff has alleged two theories by which he seeks to recover damages for personal injuries: action No. 1 sets forth a common-law negligence cause; action No. 2 alleges a statutory cause of action pursuant to section 240 of the Labor Law, to which contributory negligence is not a defense. In our opinion these are two distinctly different causes of action, which plaintiff is entitled to plead. Insofar as the complaint in action No. 2 may be construed as purportedly alleging a cause of action under section 241 of the Labor Law, it would be insufficient for failure to allege freedom from contributory negligence. Inasmuch as there are questions of law and fact common to both actions, the actions may be consolidated (CPLR 602).
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