| Scottsdale Ins. Co. v Indemnity Ins. Corp. RRG |
| 2013 NY Slip Op 06557 [110 AD3d 783] |
| October 9, 2013 |
| Appellate Division, Second Department |
| Scottsdale Insurance Company et al.,Appellants, v Indemnity Insurance Corporation RRG et al.,Respondents. |
—[*1] Ropers Majeski Kohn & Bentley, New York, N.Y. (Andrew L. Margulis of counsel),for respondents.
In an action, inter alia, for a judgment declaring that the defendant IndemnityInsurance Corporation RRG is obligated to defend and indemnify the plaintiff Alpha 1Security, Inc., in an underlying personal injury action entitled Ward v MGM Prods.,Inc., pending in the Supreme Court, Nassau County, under index No. 19129/09, theplaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.),dated January 30, 2012, which granted that branch of the defendants' motion which wasto dismiss the complaint pursuant to CPLR 3211 (a) (4).
Ordered that the order is affirmed, with costs.
Khary Ward allegedly was injured as a result of an incident that occurred at anightclub operated by the defendant MGM Productions, Inc. (hereinafter MGM). Wardthereafter commenced a personal injury action (hereinafter the Ward action) againstMGM and Alpha 1 Security, Inc. (hereinafter Alpha), which provided security services atthe nightclub pursuant to a contract with MGM.
As required by its contract with MGM, Alpha had obtained a policy of insurancefrom Scottsdale Insurance Company (hereinafter Scottsdale), naming MGM as anadditional insured. MGM maintained its own policy of insurance issued by IndemnityInsurance Company RRG (hereinafter Indemnity). When MGM notified Indemnity of theWard action, Indemnity attempted to tender the defense of MGM to Scottsdale.Scottsdale refused to defend MGM in the Ward action, whereupon Indemnitycommenced a declaratory judgment action against Scottsdale, seeking, inter alia, adeclaration that Scottsdale had a duty to defend and indemnify MGM in the Ward actionas a primary insurer under the Scottsdale policy (hereinafter the Indemnity action).Subsequently, Scottsdale and Alpha commenced the instant action against Indemnity andMGM seeking declarations, inter alia, that Indemnity and MGM are obligated to defendand indemnify Alpha in the Ward action pursuant to the coverage under the policy ofinsurance issued to MGM by Indemnity.
The defendants moved to dismiss the instant complaint on various grounds. TheSupreme Court granted that branch of the defendants' motion which was to dismiss thecomplaint [*2]pursuant to CPLR 3211 (a) (4), upon itsfinding that the instant action and the Indemnity action had substantially identical partiesand sought the identical relief. The plaintiffs appeal.
Where there is a substantial identity of the parties, the two actions are sufficientlysimilar, and the relief sought is substantially the same, a court has broad discretion indetermining whether an action should be dismissed pursuant to CPLR 3211 (a) (4) on theground that there is another action pending (see Whitney v Whitney, 57 NY2d731, 732 [1982]; Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; Montalvo v Air Dock Sys., 37AD3d 567 [2007]; Liebertv TIAA-CREF, 34 AD3d 756 [2006]). "The critical element is that both suitsarise out of the same subject matter or series of alleged wrongs" (Cherico, Cherico & Assoc. vMidollo, 67 AD3d 622, 622 [2009] [internal quotation marks omitted]; seeWhitney v Whitney, 57 NY2d at 732; Kent Dev. Co. v Liccione, 37 NY2d at901; Matter of Willnus, 101AD3d 1036 [2012]; DAIJ,Inc. v Roth, 85 AD3d 959 [2011]). Under the circumstances of this case, uponthe record that existed at the time the Supreme Court issued the order appealed from, thecourt providently exercised its discretion in granting that branch of the defendants'motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4) (see Matter of Willnus, 101AD3d 1036 [2012]; DAIJ,Inc. v Roth, 85 AD3d 959 [2011]; Spain v 325 W. 83rd Owners Corp.,302 AD2d 587 [2003]).
The plaintiffs' remaining contentions are either based on matter dehors the record orwithout merit. Skelos, J.P., Angiolillo, Roman and Cohen, JJ., concur.