CANADIAN IMPERIAL BANK OF COMMERCE v. COMMONWEALTH INSURANCE COMPANY (2005)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 9, 2004, which granted defendant's motion to the extent of staying this action pending further order of the court and a Canadian court's determination of a motion before it to dismiss a related action, unanimously affirmed, with costs.

Temporarily staying this action pending the outcome of plaintiff's argument, made as defendant in a pending Canadian action, that the Canadian action should be dismissed (see Commonwealth Ins. Co. v. Canadian Imperial Bank of Commerce, [2005] O J 1167, 2005 On C LEXIS 1355) and until further order of the New York court, was an appropriate exercise of discretion (see Estate of Miller, 233 A.D.2d 236, 649 N.Y.S.2d 709 [1996] ).   The parties to the two actions are the same and, in light of the pleading amendments accepted by the Canadian court, the issues to be litigated in the actions are identical (cf. Somoza v. Pechnik, 3 A.D.3d 394, 772 N.Y.S.2d 2 [2004] ).   In assessing the propriety of the temporary stay, we take particular note of plaintiff's participation in the prior pending Canadian action (see National Union Fire Ins. Co. v. Weir, 131 A.D.2d 380, 382, 517 N.Y.S.2d 141 [1987] ).

In light of the foregoing, we do not reach plaintiff's forum non conveniens contentions.

We have considered and rejected defendant's argument that the appeal should be dismissed.