Opinion
2002-01272, 2002-06639
Submitted January 16, 2003.
March 10, 2003.
In an action, in effect, for a judgment declaring that the defendant is obligated to indemnify the plaintiff in an underlying action entitled Alpert v. Alpert, brought in the Supreme Court, New York County, under Index No. 28490/85, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Burke, J.), dated November 27, 2001, which granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(4) to dismiss the complaint, and (2) an order of the same court, entered June 13, 2002, which denied his motion for leave to reargue. Justice Crane has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c]).
Warren S. Hecht, Forest Hills, N.Y., for appellant.
Davidoff Malito, LLP, New York, N.Y. (Michael H. DuBoff of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the appeal from the order entered June 13, 2002, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated November 27, 2001, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The relief which the plaintiff seeks in this action is "substantially the same" (Kent Development Co. v. Liccione, 37 N.Y.2d 899, 901) as the relief which he seeks in a cross complaint in another action pending between the parties. Therefore, the Supreme Court properly granted the defendant's motion to dismiss the complaint in this action (see CPLR 3211[a][4]; Benenson v. SKEK Assoc., 293 A.D.2d 694]).
FEUERSTEIN, J.P., McGINITY, H. MILLER and CRANE, JJ., concur.