Summary
In United Enterprises, it was the plaintiff who had filed a bare notice and summons and the court granted defendant's motion to dismiss in favor of an action the defendant had filed because the bare notice and summons did not suffice to establish the plaintiff's preferred case as a first-filed action even though the plaintiff's bare notice and summons was filed before the defendant's complaint was served.
Summary of this case from Caithness v. OzdemirOpinion
July 23, 1992
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
Service of a summons with notice is insufficient to create a prior action pending pursuant to CPLR 3211 (a) (4) (Louis R. Shapiro, Inc. v. Milspemes Corp., 20 A.D.2d 857). As plaintiffs did not serve their complaint prior to commencement of the Federal action in Texas, the court herein properly dismissed the complaint.
Concur — Carro, J.P., Milonas, Rosenberger and Ellerin, JJ.