Cook v. Mea-Mobiate, Inc.
410 N.Y.S.2d 871
N.Y. App. Div.
1978
Check Treatment

In an action, inter alia, for an accounting, defendants appeal from so much of an order of the Supreme Court, Nassau County, dated June 9,1978, as (1) granted plaintiff’s motion to dismiss their counterclaims pursuant to CPLR 3211 (subd [a], par 4) and (2) denied their cross motion to vacate the note of issue and statement of readiness or, in the alternative, to stay all proceedings until the plaintiff produces an alleged employee (Eugene Coussa) for an examination before trial. Order modified by deleting therefrom the provision which granted plaintiff’s motion to dismiss the defendants’ counterclaims and substituting therefor a provision denying said motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. We find that the counterclaims include a series of interrelated causes of action, some of which were not pleaded in the prior action between the parties now pending in Federal court, and, for that reason, plaintiff’s motion should have been denied in its entirety. Furthermore, assuming that all of the causes of action had been the same, CPLR 3211 (subd [a]) provides, inter alia: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that * * * 4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; [however] the court need not dismiss upon this ground but may make such order as justice requires”. In our opinion, "justice requires” that these counterclaims be tried together. However, so much of the order appealed from as denied defendants’ cross motion to compel plaintiff to produce his alleged employee for an examination before trial, under pain of procedural sanction, was properly denied by Special Term in the absence of any showing that the named individual was an employee of the plaintiff, as opposed to the nonparty Cook Equipment Corporation. Latham, J. P., Suozzi, Gulotta, Shapiro and Cohalan, JJ., concur.