Opinion
March 20, 2001.
Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about October 13, 2000, which denied defendant Good Move Trucking, Inc.'s motion to dismiss the complaint pursuant to CPLR 3211(a)(5), without prejudice to renewal after completion of discovery, unanimously affirmed, without costs.
Seth A. Eschen, for plaintiffs-respondents.
Before: Ellerin, J.P., Lerner, Saxe, Buckley, Friedman, JJ.
We reject defendant's argument that the motion court should have unconditionally dismissed plaintiffs' complaint pursuant to CPLR 3211(a)(5) on the ground that a prior United States District Court action between the same parties based upon the same causes of action was discontinued "with prejudice". Defendant fails to address the conference which took place in the District Court prior to plaintiffs' counsel's letter of discontinuance with prejudice being "so ordered," at which plaintiffs' counsel claims it was understood by all those present, including defendant's counsel, that the Federal action was being discontinued only because the monetary threshold for Federal subject matter jurisdiction had not been met, and that plaintiffs' counsel would initiate an identical action in State court, which he did three weeks later. Under these circumstances, where the inclusion of the words "with prejudice" in the order discontinuing the prior action may well have been attributable to a unilateral mistake by plaintiffs' counsel and contrary to the previously reached understanding of the parties and the court as to the effect of the discontinuance, the motion court, pending the conduct of discovery respecting the understanding upon which the discontinuance had been agreed to, properly declined to accord the discontinuance res judicata effect (see, Forte v. Kaneka Am. Corp., 110 A.D.2d 81, 84-85).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.