Barrett v Toroyan

Barrett v Delma Properties, Inc. 2006 NY Slip Op 09522 [35 AD3d 279] December 19, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Patrick D. Barrett, Individually and as a Limited Partner of Delma Associates, LP, Appellant,
v
Delma Properties, Inc., Respondent.

—[*1]

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 26, 2006, which granted defendant's motion to dismiss the complaint on the ground of other action pending, and denied plaintiff's cross motion for summary judgment pursuant to CPLR 3211 (c), unanimously modified, on the law, to deny defendant's motion, the complaint reinstated and consolidated with the other action, and otherwise affirmed, without costs.

The two actions, while not duplicative, do arise under the same contract and are otherwise sufficiently related to warrant their consolidation. The doctrine against "claim splitting," invoked by defendant, does not apply since plaintiff could not have known of the claim made in the second action until after commencement of the first (see Siegel, NY Prac § 220, at 364 [4th ed]). The action is not appropriate for pre-answer summary judgment. Concur—Saxe, J.P., Sullivan, Nardelli, Sweeny and Malone, JJ.