Opinion
July 25, 1961
Hiscock, Cowie, Bruce, Lee Mawhinney ( Phillip T. Young of counsel), for defendant.
Hoffman Hartnett ( Robert W. Hartnett of counsel), for plaintiff.
The defendant has moved for summary judgment pursuant to rule 113 of the Rules of Civil Practice dismissing plaintiff's complaint on the merits.
It seems to the court that the defendant has already moved in this same action for substantially the same relief and that such relief has been denied. In Bornhurst v. Massachusetts Bonding Ins. Co. ( 12 Misc.2d 149) at page 150, the court stated: "This is a motion to dismiss the complaint herein upon the ground that another action by the same plaintiff against the same defendant of the same character upon the same subject matter and for the same relief was then and still is pending in Supreme Court and that another action between the same parties was dismissed, and that there is no statutory authority for the present action." The defendant's motion was granted and the complaint dismissed ( Bornhurst v. Massachusetts Bonding Ins. Co., 12 Misc.2d 149, supra) but upon appeal, the judgment was reversed and the motion denied ( 11 A.D.2d 632).
This has been an extended litigation and all of the facts and circumstances in respect thereto have been fully set forth in the decisions in Bornhurst v. Massachusetts Bonding Ins. Co. ( supra) and there is no necessity for my reviewing them in this opinion.
It is urged by the defendant on this motion, which appears to be addressed to exactly the same pleading, as the one considered in Bornhurst v. Massachusetts Bonding Ins. Co. ( 12 Misc.2d 149, supra) that the Appellate Division was under the apprehension that the "former action" referred to ( 11 A.D.2d 632), was the one previously brought against the defendant, Stearns. While I consider the decision of the Appellate Division in ( 11 A.D.2d 632) determines that the cause of action set forth in the complaint here under consideration may be maintained by the plaintiff, it would seem to me that such a misunderstanding, if such there be, would have been corrected upon the motion by the defendant to reargue or by the motion by the defendant for leave to appeal to the Court of Appeals, both of which motions were denied ( 11 A.D.2d 907). In any event this court feels bound by the determination ( 11 A.D.2d 632).
The motion is denied, with $10 costs.