Opinion
February 14, 1974
Order, Supreme Court, New York County, entered on July 20, 1973, denying a motion to dismiss the complaint and other relief, unanimously modified, on the law and in the court's discretion, so as to grant the motion of defendant the Canada Life Assurance Company, and to dismiss the complaint as to said defendant only, with $60 costs and disbursements to the Canada Life Assurance Company against Canadian Imperial Bank of Commerce and, as thus modified, the order is in all other respects affirmed, without costs and without disbursements. Prior to the commencement of this action for a declaratory judgment there was another action pending in the Supreme Court of Ontario, Canada which raises, and when tried will dispose of, all the factual and legal issues in dispute between plaintiff, Canadian Imperial Bank of Commerce and defendant the Canada Life Assurance Company. Under the circumstances it was an improvident exercise of discretion for Special Term to retain jurisdiction and we reverse and dismiss the complaint against Canada Life. ( Reynolds Metals Co. v. Speciner, 6 A.D.2d 863; Storer v. Ripley, 283 App. Div. 973; Woollard v. Schaffer Stores Co., 272 N.Y. 304.)
Concur — Markewich, J.P., Nunez, Murphy and Steuer, JJ.