You are here: / / A COMPLAINT THAT IS NEVER SERVED DOES NOT CONSTITUTE AN “ACTION;”...
,

A COMPLAINT THAT IS NEVER SERVED DOES NOT CONSTITUTE AN “ACTION;” HERE A PRIOR COMPLAINT WAS NEVER SERVED; THEREFORE THE INSTANT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS ANOTHER IDENTICAL ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this traffic accident case should not have been dismissed because it was identical to a prior action. The first complaint was never served so there was no prior action:

CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [them] on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” However, a complaint must have been served in that other action, otherwise it is not “another action,” or a “prior action pending” … within the meaning of CPLR 3211(a)(4) … . Here, it is undisputed that the complaint in the prior action was not served. Quinones v Z & B Trucking, Inc., 2023 NY Slip Op 05282, Second Dept 10-18-23

Practice Point: A complaint which is never served does not constitute an “action.” The subsequent identical complaint should not have been be dismissed on the ground there was a prior identical action.

 

You might also like
PLAINTIFF INSURER DENIED FOUR CLAIMS FOR NO-FAULT INSURANCE BENEFITS ASSOCIATED WITH FOUR DISTINCT CHIROPRACTIC TREATMENTS PROVIDED BY DEFENDANT TO A WOMAN INJURED IN A TRAFFIC ACCIDENT; EACH OF THE FOUR CLAIMS WAS FOR AN AMOUNT BELOW $5000; AN ARBITRATOR AWARDED THE CLAIMED BENEFITS TO THE DEFENDANT; PLAINTIFF THEN SOUGHT DE NOVO REVIEW OF THE ARBITRAL AWARDS WHICH HAS A $5000 THRESHOLD; THE FOUR DISTINCT ARBITRAL AWARDS CANNOT BE COMBINED TO MEET THE $5000 THRESHOLD (SECOND DEPT). ​
Arrest Based on Out of State Warrant Not Authorized​
Defendant Should Have Been Allowed to Present Expert Evidence Re: False Confessions—Criteria Explained—New Trial Ordered
DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).
FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED.
THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT).
CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).
LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE EXECUTOR WAS ENTITLED TO A HEARING ON HIS OBJECTIONS TO THE FEES AND DISBURSEMENTS... PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE; DEFENDANT DRIVER IS EXPECTED...