| Cherico, Cherico & Assoc. v Midollo |
| 2009 NY Slip Op 07972 [67 AD3d 622] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Cherico, Cherico & Associates, Appellant, v RobinMidollo, Respondent. |
—[*1]
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Westchester County(Bellantoni, J.), entered September 24, 2008, as granted that branch of the defendant's motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (4) on the ground that there isanother action pending between the same parties for the same cause of action.
Ordered that the order is affirmed insofar as appealed, without costs or disbursements.
Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whether anaction should be dismissed on the ground that there is another action pending between the sameparties for the same cause of action (see Whitney v Whitney, 57 NY2d 731, 732 [1982];Matter of Janet L., 200 AD2d 801, 803 [1994]; Barringer v Zgoda, 91 AD2d 811[1982]; 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.18). A court may dismiss an actionpursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties and causes ofaction (see Montalvo v Air Dock Sys.,37 AD3d 567 [2007]; CertainUnderwriters at Lloyd's, London v Hartford Acc. & Indem. Co., 16 AD3d 167 [2005];Lopez v Shaughnessy, 260 AD2d 551 [1999]; Proietto v Donohue, 189 AD2d807 [1993]). It is not necessary that the precise legal theories presented in the first action also bepresented in the second action (see Matter of Schaller v Vacco, 241 AD2d 663 [1997]);rather, it is sufficient if the two actions are "sufficiently similar" (Montalvo v Air DockSys., 37 AD3d at 567) and that the relief sought is "the same or substantially the same" (Liebert v TIAA-CREF, 34 AD3d756, 757 [2006]; see White Light Prods. v On The Scene Prods., 231 AD2d 90[1997]). The critical element is that " 'both suits arise out of the same subject matter or series ofalleged wrongs' " (White Light Prods. v On The Scene Prods., 231 AD2d at 94, quotingKent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; see JC Mfg. v NPI Elec.,178 AD2d 505 [1991]).
Applying these principles to the matter at bar, it is clear that the Supreme Court did notimprovidently exercise its discretion in granting that branch of the defendant's motion which wasto dismiss the complaint on the ground that there was another action pending. The issues raisedand relief sought by the complaint in the instant action were substantially the same as the issuesraised and relief sought in the pending action—namely, a determination as to whether theplaintiff was [*2]entitled to collect legal fees from the defendant,and, if so, the amount of those fees. Mastro, J.P., Dillon, Dickerson, Belen and Lott, JJ., concur.