Liberty Surplus Insurance Corporation et al., Appellants, v. Harleysville Insurance Company of New York et al., Respondents

Liberty Surplus Insurance Corporation et al., Appellants, v Harleysville Insurance Company of New York et al., Respondents. [33 NYS3d 706] [MAJORITY] Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered December 11, 2014, which granted defendant Big Shot Electrical Corp.’s motion to dismiss the complaint as against it, and sua sponte dismissed the complaint as against defendant Harleysville Insurance Company of New York and nominal defendant Slawomir Pietrzyk, unanimously reversed, on the law, without costs, the dismissals vacated, and the matter remanded to the Supreme Court. While we recognize that there are similar issues, and parties with aligned interests, in this and the third party action pending in Supreme Court, Kings County, entitled St. Hilda’s & St. Hugh’s Sch. & Eurostruct, Inc. v Big Shot Elec. Corp. (index No. 12254/13), we disagree that this declaratory judgment action should be dismissed outright pursuant to CPLR 3211 (a) (4). This decision is without prejudice to the parties seeking relief in Kings County for a transfer of venue and consolidation and/or to have this action joined with the pending Kings County action. We do not reach the issue or decide the merits of Harleysville’s arguments in favor of dismissal since those arguments were not raised before nor considered by the motion court. Concur — Sweeny, J.P., Feinman, Gische and Kapnick, JJ.