Loreley Fin. (Jersey) No. 3, Ltd. v. Morgan Stanley & Co. Inc.

133 A.D.3d 425, 18 N.Y.S.3d 534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2015
• Docket: 651633/14 16067 653316/12 16066
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 9, 2014, which granted defendants’ motions in index no. 653316/12 (the 2012 action) to dismiss the amended complaint and denied plaintiffs’ cross motion to vacate a judgment, entered August 22, 2013, dismissing the action, and to consolidate the 2012 action with index no. 651633/14 (the 2014 action), unanimously dismissed, without costs, as academic. Order, same court, Justice, and entry date, which granted the motion of defendants Morgan Stanley & Co. Inc., Morgan Stanley & Co. International Ltd., and Morgan Stanley Capital Services, Inc. (the Morgan Stanley defendants) to dismiss the complaint in the 2014 action and denied plaintiffs’ cross motion to consolidate the 2012 and 2014 actions, unanimously modified, on the law, to deny the Morgan Stanley defendants’ motion, and otherwise affirmed, without costs.

In the 2014 action, the motion court did not have the benefit of Malay v City of Syracuse (25 NY3d 323 [2015]). By analogy to Malay, the 2012 action terminated for purposes of CPLR 205 (a) when plaintiffs withdrew their appeals from the so-ordered transcript and the judgment in the 2012 action on April 24, 2014, not when the so-ordered transcript was entered on July I, 2013. Since plaintiffs commenced the 2014 action on May 28, 2014 (i.e., within six months of April 24, 2014), the 2014 action is timely.

Because we find that the 2014 action is timely, we dismiss the appeal from the order in the 2102 action as academic. Concur — Tom, J.P., Friedman, Andrias, Gische and Kapnick, JJ. [Prior Case History: 2014 NY Slip Op 32622(U).]