Brody Truck Rental, Inc. v. Country Wide Insurance

—Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered January 31, 1996, which, inter alia, granted defendant-respondent’s motion to remove an action pending in Civil Court, New York County, and consolidate it with the instant action to the extent of removing such action for joint trial with the instant action, unanimously affirmed, with costs. The appeal from the remainder of the order, which denied defendant-appellant’s cross motion to dismiss defendant-respondent’s second, third and fourth cross claims against it, unanimously dismissed as academic, in view of the prior order of this Court dismissing such cross claims (226 AD2d 205).

The IAS Court correctly held that appellant waived its right *208to raise the defense that respondent’s counterclaim in the Civil Court action constitutes another action pending between these parties for the same cause of action, appellant having failed to raise this ground for dismissal in a prior motion to dismiss respondent’s cross claims (CPLR 3211 [e]; 226 AD2d 205, supra). While respondent’s cross claims were "inartfully drafted” (supra), they did provide, contrary to appellant’s assertion, sufficient notice to allow assertion of this defense on the prior motion. Concur—Sullivan, J. P., Nardelli, Williams and Tom, JJ.