Friday, November 25, 2016

Dismissal based on another pending action.

Practice point:  Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. The court providently exercised its discretion in refusing to dismiss the complaint here. While this action relates to the same properties as the prior, pending action, the plaintiff's allegations here relate to different wrongs, including wrongs of a different nature and wrongs committed at different times, and different damages.

Case:  Brestin v. LaBianca, NY Slip Op 07286 (2d Dep't November 9, 2016)

Here is the decision.

Monday's issue: Opposing a motion to dismiss for lack of personal jurisdiction.