| A.F. Rockland Plumbing Supply Corp. v Hudson Shore Associated Ltd.Partnership |
| 2012 NY Slip Op 04957 [96 AD3d 885] |
| June 20, 2012 |
| Appellate Division, Second Department |
| A.F. Rockland Plumbing Supply Corp.,Respondent, v Hudson Shore Associated Limited Partnership et al.,Appellants. |
—[*1] Marylou Paolucci & Associates, P.C., Smithtown, N.Y., for respondent.
In an action, inter alia, to recover for goods had and received and on an account stated, thedefendants appeal from an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), datedAugust 9, 2011, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a)(4) and (5).
Ordered that the order is affirmed, with costs.
In October 2009, the plaintiff commenced this action against the defendants, inter alia, torecover for goods had and received and on an account stated. The defendants then moved todismiss the complaint pursuant to CPLR 3211 (a) (4) and (5). The defendants contended that inMarch 2007, in the Civil Court of the City of New York, Kings County, the plaintiff hadcommenced an action (hereinafter the Civil Court action), which was still pending in October2009, against them alleging the same causes of action with substantially the same parties. Thedefendants further asserted that the complaint was barred by the six-year statute of limitations(see CPLR 213). The Supreme Court denied the defendants' motion. The defendantsappeal, and we affirm.
"Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whether anaction should be dismissed based upon another pending action where there is a substantialidentity of the parties, the two actions are sufficiently similar, and the relief sought issubstantially the same" (DAIJ, Inc. vRoth, 85 AD3d 959, 959 [2011]; see Whitney v Whitney, 57 NY2d 731, 732[1982]). Here, the Supreme Court providently exercised its discretion in denying that branch ofthe defendants' motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4), since,among other reasons, this action and the Civil Court action did not have substantially the sameparties (see CPLR 3211 [a] [4]; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 790 [2011]).
In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by theapplicable statute of limitations, a defendant bears the initial burden of demonstrating, primafacie, that the time within which to commence the action has expired (see Fleetwood Agency, Inc. v Verde Elec.Corp., 85 AD3d 850, 850 [2011]). Here, the complaint alleges that the causes of actionaccrued in [*2]March 2006, and this action was commenced inNovember 2009, within the relevant limitations period (see CPLR 213 [1]). Thedefendants failed to meet their prima facie burden of demonstrating that the complaint wastime-barred. The defendants' reliance upon certain allegations, asserted in the complaint in theCivil Court action, is without merit. Thus, the Supreme Court properly denied that branch of thedefendants' motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5). Skelos,J.P., Leventhal, Belen and Roman, JJ., concur.