AMERICAN HOME ASSURANCE CO v. AXIUM ENTERTAINMENT SERVICES INC (2003)

Order, Supreme Court, New York County (Helen Freedman, J.), entered February 3, 2003, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff American Home Assurance Co. brought two actions in California to recover insurance premiums from defendants, but both were voluntarily discontinued by American Home without an adjudication on the merits.   It has now brought a third action to recover the premiums in New York.   Contrary to defendants' contentions, the action is not barred by CPLR 3217(c).  It is clear that the latter of the two predicate discontinuances required under that statute must have occurred in New York if such latter discontinuance is to be viewed, pursuant to the statute, as tantamount to an adjudication on the merits.   Here, as noted, the latter of the discontinuances cited by defendants did not occur in New York.

Contrary to defendants' arguments, we find no basis to estop plaintiff from relying on CPLR 202, pursuant to which its action is governed by New York, rather than California, statutory periods and is thus timely.