Reisch v. Goodman

191 A.D.2d 626, 595 N.Y.S.2d 226, 1993 N.Y. App. Div. LEXIS 2688

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1993
• Status: Published

Opinion

—In an action to recover the sum of $357,000 allegedly owed on a promissory note, the defendants appeal from (1) an order of the Supreme Court, Kings County (Hurowitz, J.), dated December 17, 1990, which granted the plaintiff’s motion to discontinue the action and denied the defendants’ cross motion for an order dismissing the complaint, and (2) from an order of the same court dated January 28, 1991, which extended the time for serving the first order.

Ordered that the order dated December 17, 1990 is affirmed, and it is further,

Ordered that the appeal from the order dated January 28, 1991 is dismissed, and it is further,

Ordered that the plaintiff is awarded one bill of costs.

Under these circumstances, where there was a pending Federal action involving the same claims which were raised by the plaintiff in the State action, the Supreme Court did not improvidently exercise its discretion in granting the plaintiff’s motion to discontinue the State action (see, Tucker v Tucker, 55 NY2d 378; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3217.06).

The defendants’ appeal from the order dated January 28, 1991, should be dismissed inasmuch as they have failed to demonstrate that any of their substantial rights have been affected by the granting of the plaintiff’s motion for an extension of time within which to serve the first order (CPLR 5701 [a] [2] [v]). Thompson, J. P., Balletta, Rosenblatt and Fiber, JJ., concur.