MEDIAAMERICA, INC. v. RUDNICK

MediaAmerica's present motion for summary judgment in lieu of complaint seeks recovery based upon defendant's default on two payments due under a nonnegotiable promissory note, dated August 14, 1987, while its first counterclaim in the prior pending action seeks substantially the same relief based upon the termination of defendant's employment. Since both actions involve the same subject matter and parties, the more appropriate action is consolidation rather than dismissal. (See, 4 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3211.24; Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:19; Byer, Civil Motions § 316.)

Concur — Kupferman, J.P., Carro, Asch, Kassal and Rosenberger, JJ.