WHARTON v. WHARTON (1997)

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated July 23, 1996, as granted that branch of the defendant's cross motion which was to dismiss the action pursuant to CPLR 3211(a)(4).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's cross motion which was to dismiss the action pursuant to CPLR 3211(a)(4) is denied, and the action is reinstated.

When the plaintiff wife commenced this action in June 1996, the defendant husband sought to dismiss the action pursuant to CPLR 3211(a)(4) on the ground that there was already an action for a divorce and ancillary relief pending between the parties.   However, although the prior action was commenced by the husband in 1990 by service of a summons with notice, he served no complaint in that action.   Accordingly, the 1990 action did not constitute a prior pending action within the meaning of CPLR 3211(a)(4) (see, Graev v. Graev, 219 A.D.2d 535, 631 N.Y.S.2d 685;  United Enters. v. Hill, 185 A.D.2d 206, 587 N.Y.S.2d 160;  Sotirakis v. United Servs. Auto. Assn., 100 A.D.2d 931, 474 N.Y.S.2d 843;  Campagna, Inc. v. Dune Alpin Farm Assoc., 81 A.D.2d 633, 438 N.Y.S.2d 132).   Therefore, it was improper to grant that branch of the defendant's cross motion which was to dismiss the action.

MEMORANDUM BY THE COURT.