MediaAmerica, Inc. v. Rudnick , 548 N.Y.S.2d 218 ( 1989 )

Order, Supreme Court, New York County (Andrew R. Tyler, J.), entered May 2, 1989, which denied plaintiffs motion, pursuant to CPLR 3213, for summary judgment in lieu of complaint and dismissed this action, pursuant to CPLR 3211 (a) (4), on the ground of the pendency of another action involving the same parties and cause, unanimously modified, on the law and the facts and in the exercise of discretion, to vacate the dismissal of this action and to sua sponte consolidate this action with the prior action pending in New York County, entitled Thomas Rudnick v MediaAmerica, Inc. (index No. 8156/1988), and as so modified, the order is otherwise affirmed, without costs.

MediaAmerica’s present motion for summary judgment in lieu of complaint seeks recovery based upon defendant’s default on two payments due under a nonnegotiable promissory note, dated August 14, 1987, while its first counterclaim in the prior pending action seeks substantially the same relief based upon the termination of defendant’s employment. Since both actions involve the same subject matter and parties, the more appropriate action is consolidation rather than dismissal. (See, 4 Weinstein-Korn-Miller, NY Civ ¶ Prac If 3211.24; Siegel, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:19; Byer, Civil Motions § 316.) Concur—Kupferman, J. P., Carro, Asch, Kassal and Rosenberger, JJ.