W. J. Mc Evily Plumbing & Heating Contractor, Inc. v. City of Rochester

— Order unanimously modified, on the law, in accordance with memorandum and as modified affirmed, without costs. Memorandum: Special Term correctly determined that, for the purposes of appellant’s CPLR 3211 (subd [a], par 4) motion for an order dismissing the complaint, the causes of action alleged are not the same causes of action as those alleged in a prior action pending between the parties. With respect to the pleadings in the prior action between the parties since no counterclaim has been interposed, and to so plead remains as an available prerogative (National Fire Ins. Co. of Hartford…