Maier-Schule GMC, Inc. v. General Motors Corp.

210 A.D.2d 963, 620 N.Y.S.2d 684

Opinion

—Order and judgment unanimously affirmed with costs. Memorandum: Supreme Court did not abuse its discretion in granting defendants’ motions to dismiss plaintiff’s action. CPLR 3211 (a) (4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732; Colon v Gold, 166 AD2d 406, 407). Defendants established that another action between the same parties was commenced in the United States District Court for the Western District of New York that included the same causes of action asserted in this action. No activity occurred in this action from 1988 until after an unfavorable decision was rendered by the Federal court. It is apparent that plaintiff elected to litigate its causes of action in Federal court. It should not now be permitted to relitigate those causes of action in State court and thus attempt to attack the Federal court decision collaterally. If plaintiff believes that its causes of action are meritorious, the appropriate course of action is to pursue an appeal in the Second Circuit Court of Appeals. (Appeal from Order and Judgment of Supreme Court, Erie County, Mintz, J.—Dismiss Action.) Present—Green, J. P., Pine, Wesley, Callahan and Davis, JJ.