MATTER OF WALLACH

Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant.

The record indicates that the grounds raised by the proposed intervenor, Duramark, Inc., in its motion to intervene in the instant accounting proceeding commenced by the respondent National Bank of North America (hereinafter NBNA), are the same as those already raised by Duramark, Inc., against NBNA in several pending actions in the Supreme Court, Nassau County.

It is a settled principle of law that where two courts have equal and concurrent jurisdiction, the first to assume jurisdiction should retain it to the exclusion of the other (see, Colson v. Pelgram, 259 N.Y. 370, 375; Garlock v. Vandevort, 128 N.Y. 374, 379; Schuehle v. Reiman, 86 N.Y. 270, 273). Accordingly, upon determining the existence and similar nature of Duramark's claims against NBNA pending in the Supreme Court, Nassau County, the Surrogate properly denied the motion.

Additionally, inasmuch as Duramark's status vis-a-vis the decedent's estate is not one encompassed by SCPA 2210, we are of the opinion that it is not a proper party before the Surrogate in this accounting (see, Matter of Lainez, 79 A.D.2d 78, 80, affd 55 N.Y.2d 657; cf., National Bank v. Duramark, Inc., 97 A.D.2d 816).

We have considered the other contentions raised by the proposed intervenor and find them to be without merit. Mollen, P.J., Mangano, Brown and Lawrence, JJ., concur.