| Simonetti v Larson |
| 2007 NY Slip Op 08211 [44 AD3d 1028] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Barbara Simonetti et al., Appellants, v Joanne E. Larson,Respondent. |
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In an action, inter alia, to recover damages for conversion and violation of fiduciary duties,and for the imposition of a constructive trust, the plaintiffs appeal (1) from an order of theSupreme Court, Nassau County (Phelan, J.), dated February 27, 2006, which granted that branchof the defendant's motion which was to dismiss the complaint as duplicative pursuant to CPLR3211 (a) (4), and (2), as limited by their brief, from so much of an order of the same court datedAugust 10, 2006, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated February 27, 2006 is dismissed, without costs ordisbursements, as that order was superseded by the order dated August 10, 2006, made uponreargument; and it is further,
Ordered that the order dated August 10, 2006 is affirmed insofar as appealed from, withoutcosts or disbursements.
Following the death of Josephine Simonetti (hereinafter the decedent) in Florida, a survivingrelative, the defendant Joanne E. Larson, filed a petition for letters of administration in theCircuit Court for Orange County, Florida. Thereafter, another surviving relative, the plaintiffCarol Simonetti, commenced a proceeding in the Nassau County Surrogate's Court to probate thedecedent's will. During the pendency of those two proceedings, the plaintiffs Carol Simonetti andBarbara Simonetti commenced the instant action against Larson in the Supreme Court, NassauCounty, alleging, inter alia, causes of action to recover damages for conversion and violation offiduciary duties, and for the imposition of a constructive trust. The Supreme Court granted the[*2]defendant's motion to dismiss the instant action as duplicativepursuant to CPLR 3211 (a) (4). We affirm.
Pursuant to CPLR 3211 (a) (4), a court has broad discretion as to the disposition of an actionwhen another action is pending (see Whitney v Whitney, 57 NY2d 731, 732 [1982];Matter of Janet L., 200 AD2d 801 [1994]; Barringer v Zgoda, 91 AD2d 811[1982]), and may dismiss one of the actions where there is a substantial identity of the parties andcauses of action (see Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; CertainUnderwriters at Lloyd's, London v Hartford Acc. & Indem. Co., 16 AD3d 167, 168;Lopez v Shaughnessy, 260 AD2d 551 [1999]). To warrant dismissal, the two actionsmust be "sufficiently similar" and the relief sought must be "the same or substantially the same"(Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]; see White Light Prods. v On TheScene Prods., 231 AD2d 90, 94 [1997]). It is not necessary that the precise legal theoriespresented in the first proceeding also be presented in the second proceeding (see Matter ofSchaller v Vacco, 241 AD2d 663 [1997]). Rather, it is necessary that "both suits arise out ofthe same subject matter or series of alleged wrongs" (Kent Dev. Co. v Liccione, 37 NY2d899, 901 [1975]; JC Mfg. v NPI Elec., 178 AD2d 505 [1991]).
Applying these principles to the matter at bar, the pleadings in the Supreme Court action andthe Surrogate's Court proceeding show that both suits arise out of the same alleged actionablewrongs (see Kent Dev. Co. v Liccione, 37 NY2d at 901; White Light Prods. v On TheScene Prods., Inc., 231 AD2d at 90). Additionally, there is substantial identity of the parties,and the nature of the relief sought is substantially the same (Matter of Schaller v Vacco,241 AD2d 663 [1997]). Contrary to the plaintiffs' contentions that the suits are entirelydifferent because they proceeded under different theories of relief, other than semanticdistinctions, there is no difference between the relief requested in the two suits, i.e., the recoveryof the decedent's estate assets for distribution. As a result, there is no reason to continue two suitsrather than just one (see Kent Dev. Co. v Liccione, 37 NY2d at 901; JC Mfg. v NPIElec., 178 AD2d at 506). The Supreme Court, therefore, providently exercised its discretionin granting that branch of the defendant's motion which was to dismiss the complaint in theinstant action pursuant to CPLR 3211 (a) (4). Ritter, J.P., Santucci, Lifson and Dillon, JJ.,concur.