Plaintiff Joseph C. Mazurek and defendant Kimberly A. Mazurek were married on November 29, 2005. While there are no children of the marriage, the couple adopted a dog — Yukon — in 2008. On August 16, 2010, plaintiff commenced an action for divorce in Hamilton County on the grounds of constructive abandonment (see Domestic Relations Law § 170 [2]). While issue was joined in November 2010, the parties apparently reconciled some time thereafter and plaintiff did not proceed with prosecution. The parties' relationship then deteriorated again and a Separation Agreement was executed on May 31, 2012, which Agreement was filed with the Albany County Clerk on June 14, 2012.^[FN1] On August 7, 2017, plaintiff commenced this action for divorce upon the grounds of living separate and apart pursuant to a written separation agreement for a period of one or more years (see Domestic Relations Law§ 170 [6]). Presently before the Court is plaintiff's motion by Order to Show Cause for immediate possession of Yukon and defendant's motion to dismiss the complaint. The motions will be addressed ad seriatim.

It appears that the parties have shared possession of Yukon since executing their Separation Agreement.^[FN2] Plaintiff, however, contends that defendant has become "dramatically unable" to care for Yukon during the past year as a result of her alcoholism. In this regard, plaintiff asserts that defendant was hospitalized for several weeks in July 2016 to undergo emergency treatment for cirrhosis of the liver and nonetheless "resumed active, regular alcohol consumption in January 2017." Plaintiff further asserts that defendant has neuropathy and bipolar disorder and "takes more than 20 prescription medications, several of which are narcotics and psychotropic[,] and she regularly ingests these medications while consuming alcohol." According to plaintiff, "[d]efendant now refuses to allow [him] any access whatsoever to Yukon." Plaintiff seeks immediate possession of the dog, contending that "[d]efendant's [*2]dangerous conduct and behavior is causing harm to Yukon and imminent risk of serious injury or death to Yukon."

In opposition to the motion, defendant contends that she is Yukon's rightful owner, submitting a copy of the dog's rabies certificate which lists her as "owner of [the] animal." Defendant states that "[she] did have adoption papers indicating that [she] was the owner of Yukon, but [that] plaintiff took [them] when he left [her] home in June." According to defendant, she adopted "Yukon in 2008 at the recommendation of [her] treating physicians after in-patient treatment" and he was intended to be "a therapy dog." Defendant admits to suffering from several mental health conditions, some of which have required inpatient treatment in the past, but contends that she is "perfectly capable, physically and mentally, of caring for Yukon."

Defendant further contends that "plaintiff has been mentally and physically abusive" throughout their marriage, often "us[ing] Yukon to abuse [her]." As one example, defendant states as follows:

"[P]laintiff would keep Yukon outside in a car when we were both inside the house. If I wanted Yukon to come in, [p]laintiff would tell me Yukon didn't want to come in and would prevent me from bringing him in."

According to defendant, "plaintiff has filed the instant motion to further attempt to harass and abuse [her], or force [her] to reconcile with him if he is granted possession of Yukon."

In his reply in further support of the motion, plaintiff denies ever having abused defendant and reiterates his belief that the dog is in imminent danger. Plaintiff also submitted a statement from Yukon's veterinarian, whose practice is located in Warren County, indicating that plaintiff has "taken exemplary care of Yukon over the years."

Notwithstanding his several contentions, plaintiff has failed to proffer any concrete proof that Yukon is not being properly cared for by defendant. In this regard, the Court observes that defendant has case workers in her home on a regular basis and, if the dog was in imminent danger, appropriate steps would likely have been taken long ago. Under the circumstances, plaintiff's motion for immediate possession of Yukon is denied in its entirety.

It is undisputed that the Hamilton County action remains pending, as a stipulation of discontinuance was never filed. To that end, defendant moves to dismiss the instant action under CPLR 3211 (a) (4), which states as follows:

"A party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires."

Defendant contends that "[a]llowing [this] second filed action to prevail will cause substantial prejudice to [her]" because "since the filing of the Hamilton County action, . . . plaintiff has disposed of, and or converted, marital property, primarily real estate, in contradiction of the automatic orders in place at the time of the filing of that action." Defendant further contends that Warren County is not the proper venue, as both parties reside in Hamilton County (see CPLR 503 [a]). In this regard, defendant suggests that — if the Court declines to dismiss this action — it should instead direct that this action be consolidated with the Hamilton County action and then transfer venue of the consolidated actions to Hamilton County.

In opposition to the motion, plaintiff contends that he thought the Hamilton County action had been discontinued by his prior counsel and he chose to file this action in Warren County "to accommodate [the] convenience of witnesses including [Yukon's] veterinarian and others in [the veterinarian's] office who administer professional care to [the] dog . . . ."

"A court has broad discretion in considering whether to dismiss an action under CPLR 3211(a) (4)" (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:17; see Whitney v Whitney, 57 NY2d 731, 731 [1982]). "While dismissal of the [*3]present action is a potential disposition, the court is invited to make 'such order as justice requires'" (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:17, quoting CPLR 3211 [a] [4]). Where the other action is also pending in Supreme Court, "[a] common resolution (and a particularly effective one) is to order the two actions consolidated" (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:17).

Here, the two actions clearly involve common questions of law and fact and neither party will be substantially prejudiced by consolidation (see CPLR 602 [a]; Matter of Powers v De Groodt, 43 AD3d 509, 512 [2007]; Guasconi v Pohl, 2 AD3d 1202, 1203 [2003]). It appears — if anything — that defendant may be prejudiced if the actions are not consolidated. Further, Hamilton County is unquestionably the appropriate venue for the consolidated actions. CPLR 503 (a) provides that "the place of trial shall be in the county in which one of the parties resided when it was commenced" and, in this case, both parties reside in Hamilton County. While plaintiff contends that venue should be in Warren County to accommodate Yukon's veterinarian, this contention is wholly without merit given the denial of his motion for possession of the dog.^[FN3]

Defendant's motion is granted to the extent that this action is consolidated with the action pending in Hamilton County and venue of the consolidated actions is transferred to Hamilton County, and the motion is otherwise denied.

Therefore, having considered the Affidavit of Joseph C. Mazurek with attachments thereto,^[FN4] sworn to July 23, 2017, submitted in support of motion for immediate possession; Amended Affidavit of Gerry A. Schafer, Esq. with exhibits attached thereto, submitted in support of motion to dismiss and in opposition to motion for immediate possession; Affidavit of Kimberly Mazurek with exhibit attached thereto, sworn to September 18, 2017, submitted in support of motion to dismiss and in opposition to motion for immediate possession; Affirmation of Colleen E. Delcore, Esq., dated September 22, 2017, submitted in further support of motion for immediate possession and in opposition to motion to dismiss; and Affidavit of Joseph C. Mazurek with exhibit attached thereto, sworn to September 22, 2017, submitted in further support of motion for immediate possession and in opposition to motion to dismiss, and the Court having heard oral argument on September 27, 2017 with Colleen E. Delcore, Esq. appearing on behalf of plaintiff and Gerry A. Schafer, Esq. appearing on behalf of defendant, it is hereby

ORDERED that plaintiff's motion for immediate possession of the parties' dog Yukon is denied in its entirety; and it is further

ORDERED that defendant's motion is granted to the extent that this action is consolidated with the action pending in Hamilton County and venue of the consolidated actions is transferred to Hamilton County, and the motion is otherwise denied; and it is further

ORDERED that the Warren County Clerk, upon the filing of this Decision and Order, shall forthwith deliver to the Hamilton County Clerk all filings relative to the instant action, and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Amended Notice of Motion dated September 18, 2017 and the above-referenced submissions. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry on plaintiff in accordance with CPLR 5513.