Commercial Division Blog

Posted: October 4, 2019 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Action is Not First Filed Action for CPLR 3211(a)(4) Purposes if Summons With Notice is Not Followed by Complaint

On September 18, 2019, Justice Borrok of the New York County Commercial Division issued a decision in MAC Presents, LLC v. C Lewis Group, LLC, 2019 NY Slip Op. 32807(U), holding that an action brought by a summons with notice is not a first-filed action for purposes of CPLR 3211(a)(4) if that summons with notice was not followed by a complaint, explaining:

The first-in-time rule provides that the court which has first taken jurisdiction is the one in which the matter should be determined. MAC commenced this action by filing a summons and complaint dated May 9, 2019. CLG commenced a separate action in this court based on the same underlying facts by serving a summons with notice dated April 25, 2019 (the CLG Action), but did not file the complaint in the CLG Action until June 4, 2019. The problem with the motion to dismiss on this ground is that the filing of a summons with notice without service of a complaint does not constitute commencement of an action for purposes of CPLR § 3211(a)(4).

(Internal quotations and citations omitted).

It is far from rare that litigants file more than one lawsuit regarding the same issue. As this decisions shows, courts often stay later-filed lawsuits for the sake of efficiency. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding duplicative litigations.