Opinion
May 10, 1984
Order, Supreme Court, New York County (H.G. Schwartz, J.), entered June 29, 1983, granting defendants' motion to dismiss the action pursuant to CPLR 3211 (subd [a], par 4) on the ground of other action pending, is unanimously reversed, on the law and the facts and in the exercise of discretion, to the extent appealed from, and the motion to dismiss the action on the ground of other action pending is denied, and the action is directed to be consolidated with the action entitled Havadtoy Galleries v Michael, without costs. Settle order. ¶ Although the first three causes of action in the complaint in this action (hereinafter action No. 2) are almost identical with the counterclaims alleged by the present plaintiffs as defendants in the action entitled Havadtoy Galleries v Michael (hereinafter action No. 1), and the fourth cause of action in action No. 2 is closely related to the cause of action alleged in the complaint in action No. 1, the actions are not technically "between the same parties". (CPLR 3211, subd [a], par 4.) However, there is no reason why there should be two such overlapping actions between these two closely related sets of parties. ¶ Plaintiffs in action No. 1 request that the two actions be consolidated, and we so direct. The complaint in action No. 1 should be deemed the complaint in the consolidated action. In the interest of simplicity, plaintiffs in action No. 2 should serve one new answer in the consolidated action to replace their answer in action No. 1 and their complaint in action No. 2. ¶ Settle order.
Concur — Kupferman, J.P., Sullivan, Carro, Silverman and Alexander, JJ.