Summary
In Harry M. Stevens, the court held that actions are only duplicative where they involve "the same parties and issues in which plaintiff will have a resolution of the question which he presents here."
Summary of this case from Stonehill Institutional Partners, L.P. v. Frac Diamond Aggregates LLCOpinion
June 20, 1978
Order, Supreme Court, New York County, entered February 22, 1978, denying plaintiff's motion for summary judgment and staying the prosecution of the instant action for three months from February 21, 1978, unanimously modified, on the law, without costs or disbursements, to the extent of granting summary judgment to defendant dismissing the complaint, and, except, as thus modified, affirmed. Defendant in this action commenced suit against plaintiff in Puerto Rico to recover damages for breach of an employment contract. That case is in a relatively advanced stage with issue joined and pretrial discovery proceedings almost completed. Citing section 5-701 (subd a, par 1) of the General Obligations Law, plaintiff, the defendant in that action, thereafter commenced this proceeding seeking a judgment declaring that the oral employment contract, as alleged by the plaintiff in the action in Puerto Rico, is unenforceable inasmuch as it was for a term in excess of one year. The complaint should be dismissed. (CPLR 3211, subd [a], par 4.) Where there is no necessity for resorting to the declaratory judgment it should not be employed. (James v Alderton Dock Yards, 256 N.Y. 298, 305.) Another action is pending involving the same parties and issues in which plaintiff will have a resolution of the question which he presents here.
Concur — Murphy, P.J., Lupiano, Birns, Silverman and Sullivan, JJ.