Wanek v. Richardson-Merrell, Inc.

40 Misc. 2d 635, 243 N.Y.S.2d 759, 1963 N.Y. Misc. LEXIS 1578

• Court: New York Supreme Court
• Decided: October 3, 1963
• Status: Published

Opinion

Charles A. Loreto, J.

Plaintiff moves pursuant to subdivisions 3 and 6 of rule 109 of the Buies of Civil Practice for dismissal of the separate defense for legal insufficiency. Defendants cross-move pursuant to rule 3211 of the Civil Practice Law and Buies for judgment dismissing the complaint upon the ground of prior action pending or, in the alternative, for an order pursuant to section 2201 of the Civil Practice Law and Buies staying the action. It is alleged by the defense that another action is pending in the United States District Court, Southern District of New York. At the time of plea of bar and prior action, it was not good. It is good under the present practice (CPLB, rule 3211). The Federal action is founded upon plain jurisdiction by reason of diversity of citizenship and under the Federal Food, Drug and Cosmetic Act (U. S. Code, tit. 21, § 301 et seq.). Defendants dispute the grounds on jurisdiction and have moved in the Federal court action for dismissal. In the interests of justice and in the exercise of discretion under present practice and procedure, plaintiff’s motion is denied and the defense is permitted to stand. Favorable disposition of the motion to dismiss the Federal suit will not be determinative of the issues here. Therefore, dismissal is not in order. However, a stay is appropriate, and such stay will continue until final disposition of the Federal action if jurisdiction is retained. The stay will be automatically dissolved in the event a final determination is made that the Federal court is without jurisdiction. The actions are disposed of accordingly.