| Liberty Surplus Insurance Corp. v Harleysville Ins. Co. of N.Y. |
| 2016 NY Slip Op 05076 |
| Decided on June 28, 2016 |
| Appellate Division, First Department |
| 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. |
Decided on June 28, 2016
Sweeny, J.P., Feinman, Gische, Kapnick, JJ.
1582
v
Harleysville Insurance Company of New York, et al., Defendants-Respondents.
Hardin, Kundla, McKeon & Poletto, P.A., New York (George R. Hardin of counsel), for appellants.
Riker Danzig Scherer Hyland & Perretti LLP, New York (Lance J. Kalik of counsel), for Harleysville Insurance Company of New York, respondent.
O'Connor Redd LLP, Port Chester (Joseph M. Cianflone of counsel), for Big Shot Electric Corp., respondent.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered December 11, 2014, which granted defendant Big Shot Electrical Corp.'s motion to dismiss the complaint as against it, and sua sponte dismissed the complaint as against defendant Harleysville Insurance Company of New York and nominal defendant Slawomir Pietrzyk, unanimously reversed, on the law, without costs, the dismissals vacated, and the matter remanded to the Supreme Court.
While we recognize that there are similar issues, and parties with aligned interests, in this and the third party action pending in Supreme Court, Kings County, entitled St. Hilda's & St. Hugh's Sch. & Eurostruct, Inc. v Big Shot Elec. Corp. (Index no. 12254/13), we disagree that this declaratory judgment action should be dismissed outright pursuant to CPLR 3211(a)(4). This decision is without prejudice to the parties seeking relief in Kings County for a transfer of venue and consolidation and/or to have this action joined with the pending Kings County action. We do not reach the issue or decide the merits of Harleysville's arguments in favor of dismissal since those arguments were not raised before nor considered by the motion court.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2016
DEPUTY CLERK