In a May 17, 2011 decision by Justice Demarest, the court granted the defendant’s motion to dismiss pursuant to CPLR § 3211(a)(4) on the grounds that there was another action pending between the parties. Prior to the commencement of the instant action, American Express SE brought suit against the defendant for breach of contract, alleging that the defendant failed to pay monies owed to it under an agreement. The court granted the defendant’s motion to dismiss that action without prejudice and granted the plaintiff leave to replead. In the new pleading the plaintiff changed its name from American Express SE to American Express Travel Related Services Co, Inc. The court again dismissed the new complaint without prejudice, and the plaintiff appealed. In dismissing the action before it, the court determined that the complaint brought by American Express Travel Related Services Co. was identical to the previously dismissed action. The court rejected the plaintiff’s argument that the prior action was terminated under CPLR § 205, because the Court of Appeals had determined that a termination of an action occurs when appeals as of right are exhausted, and the plaintiff’s appeal was still pending. Exercising its discretion, the court stayed the entry of an order dismissing the action to permit the plaintiff to voluntarily withdraw the pending appeal and proceed with the current action if it desired. The court denied the defendant’s motion for sanctions, upon concluding that the plaintiff’s action of bringing the action before the previous action had been terminated did not rise to the level of frivolous conduct.
American Express Travel Related Services Co., Inc. v Zalmen Reiss & Assoc., Sup Ct, Kings County, May 17, 2011, Demarest, J, Index No. 1820/11