
    Patrick D. Barrett, Individually and as a Limited Partner of Delma Associates, LP, Appellant, v Kevork Toroyan et al., Respondents, et al., Defendant.
    [825 NYS2d 911]
   Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 26, 2006, which granted defendant’s motion to dismiss the complaint on the ground of other action pending, and denied plaintiffs cross motion for summary judgment pursuant to CPLR 3211 (c), unanimously modified, on the law, to deny defendant’s motion, the complaint reinstated and consolidated with the other action, and otherwise affirmed, without costs.

The two actions, while not duplicative, do arise under the same contract and are otherwise sufficiently related to warrant their consolidation. The doctrine against “claim splitting,” invoked by defendant, does not apply since plaintiff could not have known of the claim made in the second action until after commencement of the first (see Siegel, NY Prac § 220, at 364 [4th ed]). The action is not appropriate for pre-answer summary judgment. Concur—Saxe, J.P, Sullivan, Nardelli, Sweeny and Malone, JJ.  