Phillips v Google Corp. (2025 NY Slip Op 51542(U)) [*1]
Phillips v Google Corp.
2025 NY Slip Op 51542(U) [87 Misc 3d 128(A)]
Decided on October 1, 2025
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 1, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Brigantti, J.P., Tisch, James, JJ. 570320/25
Kenneth Phillips, Plaintiff-Respondent,
against
Google Corporation and YouTube, Defendants-Appellants.
Defendants, as limited by their brief, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Shahabuddeen A. Ally, J.), entered November 20, 2024, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (4).
Per Curiam.
Order (Shahabuddeen A. Ally, J.), entered November 20, 2024, insofar as appealed from, affirmed, without costs.
Dismissal of this action pursuant to CPLR 3211 (a) (4) is unwarranted because there is no longer "another action pending" between the parties for the same cause of action. We take judicial notice that the action commenced by plaintiff against defendants in the United States District Court for the Southern District of New York was dismissed after this appeal was perfected and, although plaintiff was granted leave to replead, he failed to do so by the deadline set forth in the Magistrate's dismissal order (see People v Alnutt, 107 AD3d 1139, 1141 n6 [2013], lv denied 22 NY3d 1136 [2014]; L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 7-8 [2007]). Accordingly, because the premise of defendants' motion to dismiss pursuant to CPLR 3211(a)(4)— the existence of a pending federal court matter—has now been eliminated, we affirm the denial of defendants' motion.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 1, 2025
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