These three actions arise out of an agreement whereby Stunt Sportswear USA purchased plaintiff's interest in its import and distribution business. In Action #1, plaintiff sought to enforce the agreement. In Action #2, Stunt Sportswear USA asserted claims against plaintiff in connection with his alleged breach of noncompetition and nondisclosure covenants. In Action #3, brought after the dismissal of the consolidated Actions #1 and #2, plaintiff asserts causes of action identical to those in the second amended complaint of Action #1.
Defendants' motion to dismiss the consolidated action was predicated on plaintiff's failure to comply with a conditional order of dismissal, directing him to file a note of issue by August 17, 2001. However, prior to the issuance of the order dismissing the action, the court issued an intervening preliminary conference order directing plaintiff to file a note of issue by September 30, 2001, clearly superseding the earlier conditional order of dismissal ( see Anzalone v. Pan-Am Equities, 271 A.D.2d 307, 308). Plaintiff was therefore not in default of the conditional order, and the action was properly restored.
Since the consolidated action is sub judice, defendants cannot assert res judicata as a bar to the maintenance of Action # 3. However, we exercise our discretion to dismiss that action on the ground that there is another action pending between the parties, arising out of the same transaction and involving the same claims (CPLR 3211[a][4]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.