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ANTOINE KHALIFE, ET AL, plf-ap, v. AUDI SARADAR PRIVATE BANK SAL, def-res

10570N. ANTOINE KHALIFE, ET AL, plf-ap, v. AUDI SARADAR PRIVATE BANK SAL, def-res — Schlam Stone & Dolan LLP, New York (Paul Batista of cousnel), for ap — Dechert LLP, New York (Gary J. Mennitt of counsel), for res — Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered January 10, 2013, which granted defendant's motion to set aside plaintiffs' service of a summons with notice that had been made upon defendant's counsel in a pending federal court action pursuant to CPLR 303, unanimously affirmed, with costs.

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10570N. ANTOINE KHALIFE, ET AL, plf-ap, v. AUDI SARADAR PRIVATE BANK SAL, def-res — Schlam Stone & Dolan LLP, New York (Paul Batista of cousnel), for ap — Dechert LLP, New York (Gary J. Mennitt of counsel), for res — Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered January 10, 2013, which granted defendant’s motion to set aside plaintiffs’ service of a summons with notice that had been made upon defendant’s counsel in a pending federal court action pursuant to CPLR 303, unanimously affirmed, with costs.

In order to invoke CPLR 303, plaintiffs were required to show that defendant, a foreign entity, commenced the federal action in New York, and that plaintiffs’ claims in this action “would have been permitted as… counterclaim[s]” had the federal action been brought in the Supreme Court (CPLR 303; see Evergreen Systems, Inc. v. Geotech Lizenz AG, 697 F Supp 1254, 1257 [ED NY 1988]). Plaintiffs failed to show either requirement.

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