Nype v Las Vegas Land Partners LLC

Nype v Las Vegas Land Partners LLC 2010 NY Slip Op 04865 [74 AD3d 497] June 8, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Russell L. Nype et al., Appellants,
v
Las Vegas Land Partners LLC et al., Respondents. (And Another Action.)

—[*1] Lionel A. Barasch, New York, for appellants.

Katsky Korins LLP, New York (Thomas M. Lopez of counsel), for respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered March 3, 2010, which dismissed plaintiffs' complaint pursuant to CPLR 3211 (a) (4), and orders, same court and Justice, entered March 3, 2010, which dismissed as moot plaintiffs' motions to dismiss defendants' five counterclaims and 16 of defendants' affirmative defenses, unanimously affirmed, with costs.

The IAS court providently exercised its discretion in granting defendants' motion to dismiss plaintiffs' New York action based on a previously-filed Nevada action involving substantially the same parties and the same causes of action (see CPLR 3211 [a] [4]). Given that plaintiffs asserted counterclaims in the Nevada action and did not commence this New York action until nearly two years after the commencement of the Nevada action, they cannot be heard to complain that the Nevada action was vexatious, oppressive or instituted to obtain some unjust or inequitable advantage (cf. L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1 [2007]; White Light Prods. v On The Scene Prods., 231 AD2d 90 [1997]). Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse and Manzanet-Daniels, JJ.