84 A.D.2d 738 | N.Y. App. Div. | 1981
Order, Supreme Court, New York County (Gabel, J.), entered April 14, 1981, which, inter alia, granted defendant’s cross motion to dismiss the complaint, unanimously modified, on the law, without costs or disbursements, to strike the provision directing dismissal of the complaint on the ground of another action pending between the parties for the same cause of action, and to substitute therefor a decretal paragraph granting defendant’s motion to dismiss for lack of personal jurisdiction and, except as thus modified, affirmed. This action was commenced over 18 months prior to the commencement of the other actions in Pennsylvania, which were instituted only to protect and preserve plaintiff’s rights in the event defendant prevailed on its affirmative defense of lack of personal jurisdiction. The Pennsylvania Statute of Limitations, which is shorter than that of New York, was about to expire. Dismissal because of the pendency of another action between the same parties is not mandatory, but, rather, discretionary. CPLR 3211 (subd [a], par 4) specifically provides “[T]he court need not dismiss upon this ground but may make such order as justice requires”. All pretrial proceedings had been completed and this action was ready to be placed on the Trial Calendar. In such circumstances, this action should not have been dismissed on the basis of the pending Pennsylvania actions, the commencement of which was for purely protective reasons. Moreover, inasmuch as a defense based on a ground set forth in CPLR 3211 (subd [a], par 4) is waived unless raised either by motion or responsive