| Matter of Willnus |
| 2012 NY Slip Op 08754 [101 AD3d 1036] |
| December 19, 2012 |
| Appellate Division, Second Department |
| In the Matter of Marion Cartwright Willnus, Deceased. Lisa Kyle etal., Appellants; Thomas Maguire et al., Respondents. |
—[*1] George Magriples, Astoria, N.Y., for respondents.
In a proceeding, inter alia, pursuant to SCPA 702 to obtain limited letters of administrationfor the estate of Marion Cartwright Willnus, the petitioners appeal (1), as limited by their brief,from so much of an order of the Surrogate's Court, Kings County (Lopez Torres, S.), datedMarch 1, 2011, as granted that branch of the motion of Thomas Maguire and Steven Maguirewhich was to dismiss the petition pursuant to CPLR 3211 (a) (4), and (2) from an order of thesame court dated June 17, 2011, which denied their motion for leave to reargue and renew theiropposition to that branch of the motion of Thomas Maguire and Steven Maguire which was todismiss the petition pursuant to CPLR 3211 (a) (4).
Ordered that the appeal from so much of the order dated June 17, 2011, as denied that branchof the petitioners' motion which was for leave to reargue is dismissed, as no appeal lies from anorder denying reargument (see Matter ofBraver v Silberman, 90 AD3d 654, 656 [2011]); and it is further,
Ordered that the order dated March 1, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated June 17, 2011, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whether an actionshould be dismissed on the ground that there is another action pending (see Whitney vWhitney, 57 NY2d 731, 732 [1982]; DAIJ, Inc. v Roth, 85 AD3d 959, 959 [2011]), and may dismiss anaction where there is a substantial identity of the parties and causes of action (see Cherico, Cherico & Assoc. vMidollo, 67 AD3d 622, 622 [2009]; Simonetti v Larson, 44 AD3d 1028, 1028 [2007]). It is notnecessary that the precise legal theories presented in the first action also be presented in thesecond action; rather, it is sufficient if the relief sought is "the same or substantially the same"(Kent Dev. Co. v [*2]Liccione, 37 NY2d 899, 901[1975]; see Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 622; Simonetti vLarson, 44 AD3d at 1029). "The critical element is that both suits arise out of the samesubject matter or series of alleged wrongs" (Cherico, Cherico & Assoc. v Midollo, 67AD3d at 622 [internal quotation marks omitted]; see Kent Dev. Co. v Liccione, 37 NY2dat 901; Simonetti v Larson, 44 AD3d at 1029).
Here, the Surrogate's Court providently exercised its discretion in granting that branch of themotion of the respondents Thomas Maguire and Steven Maguire (hereinafter together therespondents) which was to dismiss the petition pursuant to CPLR 3211 (a) (4). The relief soughtby the petitioners in this Surrogate's Court proceeding and a pending guardianship proceedingthey had previously commenced in the Supreme Court was substantially the same, namely, areturn of the decedent's assets to a family trust, of which the petitioners were residuarybeneficiaries (see Simonetti v Larson, 44 AD3d at 1029). In addition, both proceedingsarose out of the same allegations of wrongdoing on the part of the respondents in handling thedecedent's financial affairs, and there was substantial identity of parties in each proceeding.
The Surrogate's Court properly denied that branch of the petitioners' motion which was forleave to renew their opposition to that branch of the respondents' motion which was to dismissthe petition pursuant to CPLR 3211 (a) (4), since the new facts offered on the motion would nothave changed the prior determination (see CPLR 2221 [e] [2]; Grossman v New York Life Ins. Co.,90 AD3d 990, 992 [2011]).
The petitioners' remaining contentions are either not properly before this Court or withoutmerit. Skelos, J.P., Hall, Austin and Hinds-Radix, JJ., concur.