Summary
dismissing claims made in a complaint which were identical to counterclaims previously brought in a pending action between the parties
Summary of this case from Donovan v. Ficus Invs., Inc.Opinion
March 15, 1971
Appeal by plaintiff in Action No. 1 (defendant in Action No. 2), as limited by its brief, from so much of an order of the Supreme Court, Westchester County, dated June 22, 1970, as (a) denied its motion as such plaintiff to dismiss the complaint in Action No. 2, pursuant to CPLR 3211 (subd. [a], par. 4), on the ground that both actions were identical, with leave to move for consolidation of both actions after completion of all pretrial proceedings, and (b) directed that the depositions of defendants Essayan (plaintiffs in Action No. 2) be taken at the offices of their own attorneys. Order modified by striking therefrom the first decretal paragraph and substituting therefor a provision granting the motion of plaintiff in Action No. 1 to dismiss the complaint in Action No. 2. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to appellant. Action No. 1 was commenced by Pompea, Inc., on January 30, 1970, by the service of a summons and complaint on defendants Essayan. The Essayans' answer was received February 13, 1970. It included three counterclaims. A reply was interposed, together with a notice to take the deposition of the Essayans, both dated March 3, 1970. The deposition was scheduled for March 17, 1970. Action No. 2 was commenced by the Essayans on the same day as Action No. 1, but later in the day, by the service of a summons without a complaint. The complaint was not served until April 6, 1970. In the interim, motion papers had been served on March 30, 1970 to dismiss the action for failure to serve a complaint. By its notice of motion, plaintiff in Action No. 1 (hereafter called Pompea) sought dismissal of the complaint in Action No. 2 pursuant to CPLR 3211 (subd. [a], par. 4), which provides: "Rule 3211. Motion to dismiss. (a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: * * * 4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires". Pompea's complaint seeks foreclosure of its mechanic's lien and money damages for breach by the Essayans of a construction contract entered into between them. The three counterclaims of the Essayans in that action seek damages for the breach by Pompea of that same construction contract. The Essayans' complaint (in Action No. 2) contains two causes of action and they are identical in every respect with their first two counterclaims in the Pompea action. Under such circumstances, to keep Action No. 2 alive until "all pre-trial proceedings have been completed", as directed in the order under review, would serve no useful purpose, for whatever pretrial proceedings need be taken can be pursued in Action No. 1. Professor David D. Siegel (in his Practice Commentaries on CPLR 3211, in McKinney's Cons. Laws of N.Y., Book 7B, vol. for CPLR 3201 — 3400, p. 21) states: "The general rule is that for the instant action to qualify for dismissal on the ground of the other's pendency, the other must have been commenced first" (see, also, pp. 23, 25). For all practical purposes Action No. 1 was first commenced, for the summons and complaint in that action were served on January 30, 1970 and the complaint in Action No. 2 was not served until April 6, 1970. Even if that complaint be deemed to relate back to the time of the service of the summons in Action No. 2, it is clear that that summons was not served until after the service of the summons and complaint of Action No. 1, although on the same day. Under the factual pattern here, the making of an order which justice requires necessitates the dismissal of Action No. 2, that clearly being the preferable result to having identical causes of action prosecuted at the same time in separate actions. Appellant also appeals from that portion of the order which directed that the deposition of the Essayans be taken at the offices of their own attorneys. Since on the settlement of the order below, which contained the provision now complained of, appellant submitted no counter order, it may not now be heard to complain about the place fixed for holding of the examinations. If a timely objection to having the examination in the opposing lawyers' office had been interposed, we might have a different result ( Ambrose v. Wurlitzer Co., 27 A.D.2d 732; but see Professor Siegel's comment on that case in his Practice Commentaries on CPLR 3110, McKinney's Cons. Laws of N.Y., Book 7B, vol. for CPLR 3101 — 3200, p. 399). Munder, Acting P.J., Latham, Shapiro and Benjamin, JJ., concur; Martuscello, J., dissents and votes to affirm the order insofar as appealed from, with the following memorandum: Special Term had the discretion, upon a motion by plaintiff in Action No. 1, Frank Pompea, Inc., to dismiss the complaint in Action No. 2 pursuant to CPLR 3211 (subd. [a], par. 4), either to dismiss the latter action or to consolidate the two actions in lieu of dismissal (Practice Commentaries on CPLR 3211 by Prof. David D. Siegel, McKinney's Cons. Laws of N.Y., Book 7B, vol. for CPLR 3201 3400, p. 25). Special Term denied the motion to dismiss, with leave to move for consolidation of both actions after completion of all pretrial proceedings. In my opinion, the court's order did not constitute an abuse of discretion.