Service of a summons with notice is insufficient to create a prior action pending pursuant to CPLR 3211 (a) (4) (Louis R. Shapiro, Inc. v. Milspemes Corp., 20 A.D.2d 857). As plaintiffs did not serve their complaint prior to commencement of the Federal action in Texas, the court herein properly dismissed the complaint.
Concur — Carro, J.P., Milonas, Rosenberger and Ellerin, JJ.