Opinion
December 12, 1975
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Cardamone, Mahoney, Del Vecchio and Witmer, JJ.
Order unanimously modified, on the law, in accordance with memorandum and as modified affirmed, without costs. Memorandum: Special Term correctly determined that, for the purposes of appellant's CPLR 3211 (subd [a], par 4) motion for an order dismissing the complaint, the causes of action alleged are not the same causes of action as those alleged in a prior action pending between the parties. With respect to the pleadings in the prior action between the parties since no counterclaim has been interposed, and to so plead remains as an available prerogative (National Fire Ins. Co. of Hartford v Hughes, 189 N.Y. 84, 92; Burnstine v Geist, 257 App. Div. 792, 794), full relief is not accorded respondent because recovery for it is at present contingently limited to participation in any judgment fund which may therein be awarded. In the instant action, direct relief by way of a money judgment for alleged contract damages is sought, unfettered by any contingency or limitation existent in the prior pending action between the parties and others. Absent complete relief in the prior action, the two actions may not be construed as the "same action" under the principles of National Fire Ins. Co. of Hartford v Hughes (supra) to sustain appellant's CPLR 3211 (subd [a], par 4) motion for dismissal. Special Term improperly granted an order directing a separate trial of the instant action in the absence of a motion, required by CPLR 603, with appropriate notice to interested parties (Singer v Singer, 33 A.D.2d 1054, 1055; Williams v Williams, 268 App. Div. 1070, 1071; Malinoski v Mekody, 48 N.Y.S.2d 940, 945, affd on other grounds 269 App. Div. 717). In view of appellant's objection raised on this appeal and the lack of a clear record as to what transpired upon oral argument and postargument submissions at Special Term, an opportunity for full and complete presentation on the issue of consolidation or joint trial should be granted appellant, if he is so advised.