Alpert v. Alpert , 755 N.Y.S.2d 889 ( 2003 )

—In an action, in effect, for a judgment declaring that the defendant is obligated to indemnify the plaintiff in an underlying action entitled Alpert v Alpert, brought in the Supreme Court, New York County, under Index No. 28490/85, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Burke, J.), dated November 27, 2001, which granted the defendant’s motion, inter alia, pursuant to CPLR 3211 (a) (4) to dismiss the complaint, and (2) an order of the same court, entered June 13, 2002, which denied his motion for leave to reargue. Justice Crane has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the appeal from the order entered June 13, 2002, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated November 27, 2001, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The relief which the plaintiff seeks in this action is “substantially the same” (Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]) as the relief which he seeks in a cross complaint in another action pending between the parties. Therefore, the Supreme Court properly granted the defendant’s motion to dismiss the complaint in this action (see CPLR 3211 [a] [4]; Benenson v SKEK Assoc., 293 AD2d 694 [2002]). Feuerstein, J.P., McGinity, H. Miller and Crane, JJ., concur.