Stewart Title Insurance Co. v. Wingate, Kearney & Cullen

2016 NY Slip Op 8170, 145 A.D.3d 462, 41 N.Y.S.3d 712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2016
• Docket: 2390 154681/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 20, 2015, which granted defendants’ motion to dismiss the complaint, pursuant to CPLR 3211 (a) (4), on the ground that there is another action pending between the same parties for the same cause of action in Kings County, and denied plaintiff’s cross motion to stay the action pending a determination of the appeal in the Kings County action, unanimously affirmed, with costs.

Two of the causes of action in the instant action are identical to the two causes of action asserted in the Kings County action, which has been reinstated on appeal (Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen, 134 AD3d 924 [2d Dept 2015], lv dismissed 27 NY3d 950 [2016]). The third, brought pursuant to RPAPL 1501 (4), arises out of the same facts as the other claims and asserts a closely related theory. Since in determining a motion to dismiss pursuant to CPLR 3211 (a) (4), “it is inconsequential that different legal theories or claims were set forth in the two actions” (Shah v RBC Capital Mkts. LLC, 115 AD3d 444, 444-445 [1st Dept 2014]), the motion court properly exercised its discretion in dismissing the instant action.

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur—Renwick, J.P., Saxe, Gische and Webber, JJ.