Opinion
2007-217 K C.
Decided March 13, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated December 7, 2006. The order granted that branch of defendant's motion seeking to dismiss the complaint based on the pendency of a prior action in Queens County Civil Court only to the extent that the court deemed the prior action discontinued, and in effect denied that branch of defendant's motion seeking the imposition of costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR).
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Order modified by striking the provision deeming the prior action in Queens County Civil Court discontinued and by providing that defendant's motion is granted to the extent of dismissing the complaint; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based on the pendency of a prior action for the same cause of action (CPLR 3211 [a] [4]). The court granted defendant's motion only to the extent that the court in essence deemed discontinued the prior action in Queens County Civil Court.
In our view, the court should properly have dismissed the instant complaint. The record demonstrates that both lawsuits are predicated on the same cause of action, and that the prior action had proceeded to discovery. Moreover, as a general matter, deference is accorded to the first action filed ( see Reckson Assoc. Realty Corp. v Blasland, Bouck Lee, 230 AD2d 723; Matter of Wallach, 130 AD2d 495, 496), and no sufficient reason was shown to depart from this rule here. Accordingly, we modify the order to provide for the dismissal of the instant complaint ( see Packes v Cendant Mtge. Corp., 19 AD3d 386).
The branch of defendant's motion seeking costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR) was properly denied as plaintiff's actions, under the circumstances presented, do not rise to the level warranting the imposition of such costs.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.