Summary
In Wharton which cited to Graev, the husband sought dismissal under CPLR 3211(a)(4) defensively after the wife commenced an action seven years after he initially filed but did nothing.
Summary of this case from Quatro Consulting Grp., LLC v. Buffalo Hotel Supply Co.Opinion
November 10, 1997
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's cross motion which was to dismiss the action pursuant to CPLR 3211 (a) (4) is denied, and the action is reinstated.
When the plaintiff wife commenced this action in June 1996, the defendant husband sought to dismiss the action pursuant to CPLR 3211 (a) (4) on the ground that there was already an action for a divorce and ancillary relief pending between the parties. However, although the prior action was commenced by the husband in 1990 by service of a summons with notice, he served no complaint in that action. Accordingly, the 1990 action did not constitute a prior pending action within the meaning of CPLR 3211 (a) (4) ( see, Graev v. Graev, 219 A.D.2d 535; United Enters. v. Hill, 185 A.D.2d 206; Sotirakis v. United Servs. Auto. Assn., 100 A.D.2d 931; Campagna, Inc. v. Dune Alpin Farm Assocs., 81 A.D.2d 633). Therefore, it was improper to grant that branch of the defendant's cross motion which was to dismiss the action.
Rosenblatt, J.P., Miller, Ritter and Krausman, JJ., concur.
[As amended by unpublished order entered Mar. 9, 1998.]