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Barrett v. Toroyan

Appellate Division of the Supreme Court of New York, First Department
Dec 19, 2006
35 A.D.3d 279 (N.Y. App. Div. 2006)

Opinion

No. 9873.

December 19, 2006.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 26, 2006, which granted defendant's motion to dismiss the complaint on the ground of other action pending, and denied plaintiff's cross motion for summary judgment pursuant to CPLR 3211 (c), unanimously modified, on the law, to deny defendant's motion, the complaint reinstated and consolidated with the other action, and otherwise affirmed, without costs.

David J. Hoffman, New York, for appellant.

LeBoeuf, Lamb, Greene MacRae LLP, New York (Thomas G. Rohback of counsel), for respondents.

Before: Saxe, J.P., Sullivan, Nardelli, Sweeny and Malone, JJ.


The two actions, while not duplicative, do arise under the same contract and are otherwise sufficiently related to warrant their consolidation. The doctrine against "claim splitting," invoked by defendant, does not apply since plaintiff could not have known of the claim made in the second action until after commencement of the first ( see Siegel, NY Prac § 220, at 364 [4th ed]). The action is not appropriate for pre-answer summary judgment.


Summaries of

Barrett v. Toroyan

Appellate Division of the Supreme Court of New York, First Department
Dec 19, 2006
35 A.D.3d 279 (N.Y. App. Div. 2006)
Case details for

Barrett v. Toroyan

Case Details

Full title:PATRICK D. BARRETT, Individually and as a Limited Partner of DELMA…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 19, 2006

Citations

35 A.D.3d 279 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 9522
825 N.Y.S.2d 911

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