Barringer v. Zgoda

91 A.D.2d 811, 458 N.Y.S.2d 42, 1982 N.Y. App. Div. LEXIS 19708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1982
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Harlem, J.), entered November 18, 1981 in Albany County, which, inter alia, granted plaintiffs’ motion for dismissal of defendant’s counterclaim pursuant to CPLR 3211 (subd [a], par 4). Special Term properly dismissed defendant’s counterclaim. Defendant does not dispute that she has a separate action pending in the United States District Court against plaintiffs and some additional parties for the same causes of action asserted in the counterclaim. Substantial, not complete, identity of parties is all that is required to invoke CPLR 3211 (subd [a], par 4) (Bradford v Brooklyn Trust Co., 269 App Div 549; Siegel, New York Practice, § 262, p 322). Furthermore, the fact that there are some additional parties in the District Court action, thus possibly permitting broader relief there than in the instant action, makes the dismissal of the counterclaim herein particularly appropriate (Siegel, New York Practice, § 262, p 322). There is likewise no merit to defendant’s contention that Special Term erred in dismissing, rather than staying, the counterclaim. When another action is pending, a “court need not dismiss upon this ground but may make such order as justice requires” (CPLR 3211, subd [al, par 4). Thus, under this provision, a court has broad discretion as to the disposition of an action when another is pending (4 Weinstein-Korn-Miller, NY Civ Prac, pars 3211.18, 3211.24). On the record before us, Special Term did not abuse its discretion here. Order affirmed, without costs. Casey, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.