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Pericles Tsapogas, Appellant v. Edward Early

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 21, 2013

PERICLES TSAPOGAS, APPELLANT, --
v.
EDWARD EARLY, ELIZABETH EARLY AND 511 E. 83RD ST. REALTY, LLC,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 26, 2011.

Tsapogas v Early

Decided on March 21, 2013

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ

The order granted defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had asserted the same causes of action in a counterclaim he had interposed in a prior pending Supreme Court action involving substantially the same parties, and arising out of the same alleged transaction, as involved herein. Upon a review of the record, we find that the Civil Court properly granted defendants' motion since there is a substantial identity of the parties in the two actions, the two actions are sufficiently similar and the relief sought is substantially the same (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; DAIJ, Inc. v Roth, 85 AD3d 959 [2011]; Proietto v Donohue, 189 AD2d 807 [1993]). Since defendants asserted the ground that there is a prior pending action (see CPLR 3211 [a] [4]) as an affirmative defense in their answer, they could properly assert this ground as the basis for dismissal pursuant to CPLR 3212 (see David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:20).

We find plaintiff's remaining contentions to be without merit.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 21, 2013

20130321

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