Kent Development Co. v. Liccione

45 A.D.2d 965, 359 N.Y.S.2d 1003, 1974 N.Y. App. Div. LEXIS 4107

Opinion

In an action to recover damages for breach of contract (first cause, against defendant Gnerre only) and conspiracies and other alleged torts (second and third causes, which are against Gnerre and others), defendant Gnerre appeals from an order of the Supreme Court, Westchester County, dated January 11, 1974, which denied the branch of his motion which sought (1) to dismiss each of the three causes of action and (2) summary judgment. Order reversed, on the law, with $20 costs and disbursements, and complaint dismissed as to defendant Gnerre. As to the first cause of action, there is another action pending between the same parties to that cause, which other action was previously instituted by appellant in the Supreme Court, Putnam County. All of the issues sought to be raised here can be tried in that action. This court, therefore, sua sponte, dismisses the first cause of action (CPLR 3211, subd. [a], par. 4). The conspiracies and criminal threats alleged in the second and third causes of action are derivative and subsidiary to the alleged breach of contract, the issues of which are presently before the Supreme Court, Putnam County. Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.