Kenneth Phillips, Plaintiff-Respondent, v. Google Corporation and YouTube, Defendants-Appellants. (2025)

Per Curiam.

Order (Shahabuddeen A. Ally, J.), entered November 20, 2024, insofar as appealed from, affirmed, without costs.

Dismissal of this action pursuant to CPLR 3211 (a) (4) is unwarranted because there is no longer "another action pending" between the parties for the same cause of action. We take judicial notice that the action commenced by plaintiff against defendants in the United States District Court for the Southern District of New York was dismissed after this appeal was perfected and, although plaintiff was granted leave to replead, he failed to do so by the deadline set forth in the Magistrate's dismissal order (see People v Alnutt, 107 AD3d 1139, 1141 n6 [2013], lv denied 22 NY3d 1136 [2014]; L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 7-8 [2007]). Accordingly, because the premise of defendants' motion to dismiss pursuant to CPLR 3211(a)(4)— the existence of a pending federal court matter—has now been eliminated, we affirm the denial of defendants' motion.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: October 1, 2025