Summary
holding that CPLR § 3211 "vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action," and holding that the Appellate Term had erred in dismissing, on the law, the Special Term's exercise of discretion in denying such a motion
Summary of this case from Donovan v. Ficus Invs., Inc.Opinion
Decided September 9, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES A. GOWAN, J.
Frederick C. Meyer and Steven M. Schapiro for appellant.
Raoul Lionel Felder and Myrna Felder for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for a review of the facts and the exercise of discretion, if appropriate. CPLR 3211 (subd [a], par 4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. Thus, it was error for the Appellate Division to have reversed, on the law, the lower court's exercise of discretion in deciding the instant motion.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.