Nype v. Las Vegas Land Partners LLC — 74 A.D.3d 497

Majority

p. 497

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

[901 NYS2d 521]

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

p. 498

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.

Cases cited

L-3 Communications Corp. v. SafeNet, Inc. 45 AD3d 1 N.Y. App. Div. 2007-08-30 p. 498
White Light Productions, Inc. v. On The Scene Productions, Inc. 231 AD2d 90 N.Y. App. Div. 1997-07-17 p. 498