Hammer v. Gleason Avenue Associates , 60 A.D.2d 519 ( 1977 )

Order, Supreme Court, Bronx County, entered August 16, 1976, unanimously affirmed, without costs or disbursements. The basic claim is for personal injuries sustained by plaintiff-respondent-appellant at a building owned by one of defendants-appellants-respondents. Suit was commenced against defendant Gilman Realty Corp. in Civil Court, issue being joined July 10, 1975. Two or three months later, plaintiff commenced a Supreme Court action for the same relief against defendant Gleason Avenue Associates, joining Gilman as codefendant; issue was joined October 10, 1975, the answer containing an affirmative defense of pendency of the other action. In May, 1976 defendants moved for an order dismissing the Supreme Court action on that ground. Plaintiff cross-moved to consolidate both actions, asserting at the same time that he had discontinued in Civil Court in October. Both motions were denied as academic in view of the discontinuance. The discontinuance was actually without effect without a court order (CPLR 3217, subds [a], [b]). Obviously plaintiff’s intention was to get both prospective defendants into the same action in the same court. Let it be done without further waste of judicial time. We accomplish this without further red tape by deeming Supreme Court’s acceptance of the discontinuance to be an order approving it. Concur— Silverman, J. P., Evans, Lane and Markewich, JJ.