Campagna v. Dune Alpin Farm Associates

81 A.D.2d 633, 438 N.Y.S.2d 132, 1981 N.Y. App. Div. LEXIS 11138

Opinion

— In an action, inter alia, for specific performance of a contract, defendant appeals from an order of the Supreme Court, Suffolk County, dated October 8, 1980, which denied its motion pursuant to CPLR 3211 (subd [a], par 4) to dismiss the action on the ground that another action was already pending. Order modified, by adding thereto a provision consolidating this matter with the case of Dune Alpin Farm Assoc, v John J. Campagna, Inc., now pending in the Supreme Court, Suffolk County. As so modified, order affirmed, without costs or disbursements. Special Term correctly denied defendant’s motion to dismiss this action inasmuch as a prior action was not yet pending at the time the instant action was commenced. This is because a summons served with notice but without a complaint does not cqnstitute “another action” within the meaning of CPLR 3211 (subd [a], par 4) (Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:19, p 26). However, to best serve the interests of judicial economy while still preserving the rights of the parties, the court should have sua sponte ordered consolidation of these actions. The court may make such an order on a motion pursuant to CPLR 3211 (subd [a], par 4) even though neither party has requested such relief (see Seigel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, 03211:19, p 25). Accordingly, we direct that these actions be consolidated. Damiani, J.P., Gibbons, Margett and O’Connor, JJ., concur.