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Nype v. Las Vegas Land Partners LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 8, 2010

RUSSELL L. NYPE, ET AL., PLAINTIFFS-APPELLANTS,
v.
LAS VEGAS LAND PARTNERS LLC, ET AL., DEFENDANTS-RESPONDENTS. [AND ANOTHER ACTION]

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 sixteen of defendants' affirmative defenses, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Nardelli, DeGrasse, Manzanet-Daniels, JJ.

602625/09

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 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100608

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