Whitney v. Whitney — 57 N.Y.2d 731

Majority

p. 731

Harry P. Whitney, Appellant, v Andrea R. Whitney, Respondent.

Decided September 9, 1982

p. 732

APPEARANCES OF COUNSEL

Frederick C. Meyer and Steven M. Schapiro for appellant.

Raoul Lionel Felder and Myrna Felder for respondent.

OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for a review of the facts and the exercise of discretion, if appropriate. CPLR 3211 (subd [a], par 4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. Thus, it was error for the Appellate Division to have reversed, on the law, the lower court’s exercise of discretion in deciding the instant motion.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.