NY JUR 2d, Limitations and Laches §§ 308, 309, 313.
SIEGEL, NY PRAC §§ 48, 52.
ANNOTATION REFERENCE
See ALR Index under Counterclaim, Recoupment, and
Setoff; Limitation of Actions.
FIND SIMILAR CASES ON WESTLAWs
Database: NY-ORCS
Query: counterclaim /s discont! dismiss! & same /2 occur-
rence
86 46 MISCELLANEOUS REPORTS, 3d SERIES
APPEARANCES OF COUNSEL
Greenblatt & Agulnick, P.C., Great Neck (Steven Kotchek of
counsel), for appellant.
Max D. Leifer, P.C., New York City (Ira H. Zuckerman of
counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
Ordered that the order is affirmed, without costs.
In this action to recover for, among other things, battery, the
record reveals that plaintiff commenced a prior action in federal
court against defendant and the City of New York, and defend-
ant served an answer with a counterclaim in that action to re-
cover for personal injuries, alleging, among other things, that
plaintiff’s conduct had been ‘‘wilful and negligent.’’ Defendant
thereafter stipulated to discontinue that counterclaim without
prejudice, and plaintiff settled his action against the City of
New York. As a result, the federal court dismissed the action,
without prejudice, as it chose to no longer exercise jurisdiction
over the pendent state claims. Plaintiff then commenced an ac-
tion in Supreme Court, Queens County. Defendant served an
answer with the same counterclaim he had timely filed in the
action in federal court. The action was transferred to the Civil
Court, Queens County, pursuant to CPLR 325 (d).
Plaintiff thereafter moved to dismiss the counterclaim on the
grounds that it was untimely and failed to state a cause of ac-
tion. By order dated April 15, 2013, the Civil Court denied the
motion, finding that the complaint stated a cause of action and