Henry v. Solomon & Solomon, P. C.

Appeal from an order of the Supreme Court (Conway, J.), entered December 21, 1992 in Albany County, which, upon reargument, granted defendants’ motion to dismiss the complaint.

Defendants moved to dismiss this action pursuant to CPLR 3211 (a) (4) contending that there was another action pending between the same parties for the same cause of action in another court. Supreme Court, although concluding that the underlying causes of action were not the same, exercised the discretionary authority vested in it by CPLR 3211 (a) (4) and ordered that this action be consolidated with an action commenced by defendant New York State Higher Education Services Corporation' against plaintiff in the Civil Court of the City of New York. Plaintiff thereafter moved to reargue, contending that CPLR 602 (b) only permitted removal of an action from a lower court to a higher court and, hence, the Civil Court action had to be consolidated with this action and removed to Supreme Court, Albany County. Upon reargument, Supreme Court dismissed what it characterized as plaintiff’s action for malicious prosecution and this appeal by plaintiff followed.

*792Although we have no quarrel with Supreme Court’s exercise of its discretionary authority, it is apparent that the action pending in Civil Court should have been consolidated with this action and removed to Supreme Court, Albany County, in accordance with CPLR 602 (b). Additionally, we are of the view that Supreme Court erred in characterizing the instant action as one for malicious prosecution. Contrary to defendants’ assertion, plaintiff’s complaint sounds in abuse of process (see generally, Curiano v Suozzi, 63 NY2d 113, 116), not malicious prosecution (see generally, Witcher v Children’s Tel. Workshop, 187 AD2d 292, 293). In reaching this result, we express no opinion as to the sufficiency of the allegations set forth in plaintiff’s complaint, as that issue is not properly before this Court.

Mikoll, J. P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is modified, on the law, with costs to plaintiff, by reversing so much thereof as granted defendants’ motion to dismiss the complaint; said motion denied and the action pending in the Civil Court of the City of New York, New York County, is consolidated with this action and is removed to Supreme Court, Albany County; and, as so modified, affirmed.