Nancy S. N. Kung, Also Known as Nancy K. Pan, Appellant, v. Gus M. Farinella, Respondent

Nancy S. N. Kung, Also Known as Nancy K. Pan, Appellant, v Gus M. Farinella, Respondent. [716 NYS2d 891] [MAJORITY] —In an action to recover damages for breach of contract and the intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), dated December 17, 1999, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) and (5) on the ground that another action was pending between the parties for the same relief, and on the basis of an arbitration and award in that action. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint reinstated. Although the determination of a CPLR 3211 (a) (4) motion to dismiss is committed to the sound discretion of the motion court (see, Whitney v Whitney, 57 NY2d 731, 732), it was an improvident exercise of discretion to grant the motion to dismiss in this case. CPLR 3211 (a) (4) provides that a court may dismiss an action 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.” Here, no prior action was pending. The Civil Court action had been dismissed on the ground that this action was pending (see, D’Agostino v Harding, 217 AD2d 835). Nor was the instant action barred by arbitration and award since the judgment granted by an arbitrator in the Civil Court action was vacated on the defendant’s motion before the Supreme Court dismissed this action (see, Alderman Co. v American Sleeping Sys. Corp., 120 Misc 2d 878; cf., Ferrandino v Cappelli, 12 AD2d 604). Mangano, P. J., Luciano, Feuerstein and Schmidt, JJ., concur.