GSL Enterprises, Inc. v. Citibank, N. A.

155 A.D.2d 247, 546 N.Y.S.2d 857, 1989 N.Y. App. Div. LEXIS 13697

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1989
• Status: Published

Opinion

— Judgment of the Supreme Court, New York County (Harold Tompkins, J.), entered on June 5, 1989, based on an order of the same court entered on May 31, 1989, which granted defendant’s motion pursuant to CPLR 3211 (a) (4) for dismissal of the complaint on the ground of a prior pending action, is unanimously affirmed, without costs.

The instant complaint was properly dismissed because "a pending action existed between the same parties for essentially the same relief and involving the same actionable wrong”. (Healy v Dentcare Delivery Sys., 129 AD2d 557.) Plaintiff, in the instant complaint, expands on its pleadings of fact and adds new causes of action that are different in form. Nonetheless, both complaints essentially seek relief on the basis of defendant’s alleged failure to fulfill contractual obligations to obtain a certificate of occupancy for a building sold to plaintiff by defendant’s subsidiary, and to indemnify plaintiff for actions brought by tenants of the subject building. Concur —Kupferman, J. P., Carro, Asch, Kassal and Rosenberger, JJ.