| Red Barn Country, LLC v Trombley |
| 2014 NY Slip Op 06397 [120 AD3d 1537] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Red Barn Country, LLC, Plaintiff, and Gary Hafner,Appellant, v Linda Trombley, Respondent. |
Woodruff Lee Carroll, Syracuse, for plaintiff-appellant.
Curtin & Dejospeh, P.C., Cazenovia (Christina F. Dejoseph of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John C.Cherundolo, A.J.), entered October 29, 2012. The order, insofar as appealed from,granted that part of defendant's motion seeking to dismiss the plaintiffs' amendedcomplaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the motion is denied in its entirety and the amended complaintis reinstated.
Memorandum: Plaintiffs commenced this action seeking to recover money paid byGary Hafner (plaintiff) to discharge a mortgage on property owned by defendant, hissister. Plaintiff and his father (hereafter, decedent) each owned various parcels of landthat comprised the family farm and obtained a single note and mortgage encumberingthose parcels. Plaintiff and decedent thereafter defaulted on the mortgage, and the bankcommenced a foreclosure action, at which time decedent conveyed certain parcels thatwere subject to the mortgage to defendant, his daughter. Decedent conveyed hisremaining parcels that were subject to the mortgage to plaintiff, who in turn sold them toRed Barn Country, LLC (Red Barn). As part of the transaction with Red Barn, plaintiffwas required to pay off the mortgage. Decedent commenced an action seeking to setaside the transfer of the property to defendant and, after his death, the action wasdismissed by Supreme Court on the ground that it was duplicative of a proceedingpending in Surrogate's Court "surrounding the distribution of the assets of [decedent's]Estate." Defendant moved, inter alia, to dismiss the instant action on the ground that theissues raised herein likewise should be resolved in the action in Surrogate's Court, andplaintiff appeals from an order granting that part of defendant's motion. We reverse theorder insofar as appealed from.
Pursuant to CPLR 3211 (a) (4), "[a] party may move for judgment dismissing one ormore causes of action . . . on the ground that . . . there isanother action pending between the same parties for the same cause of action in a courtof any state or the United States." "In determining whether two causes of action are thesame, we consider '(1) [whether] both suits arise out of the same actionable wrong orseries of wrongs[ ] and (2) as a practical matter, [whether] there [is] any good reason fortwo actions rather than one being brought in seeking the remedy' " (Rinzler v Rinzler, 97 AD3d215, 217 [2012]; see Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975];JC Mfg. v NPI Elec., 178 AD2d 505, 506 [1991]; Mullins v Saul, 130AD2d 634, 636 [1987]). We conclude that CPLR 3211 (a) (4) is not applicable hereinasmuch as the parties are not the same nor are the causes of action or the relief soughtthe same. The " 'actionable wrong' " in the action in Surrogate's Courtwas the transfer of the disputed property to defendant, whereas the " 'actionablewrong' " in this action was defendant's failure to pay the mortgage on thedisputed property (Rinzler, 97 AD3d at 217). The court therefore erred indismissing the amended complaint because "neither the parties nor the causes of action inthe two [actions] are the same or even substantially similar" (Zabel v Karasik,184 AD2d 436, 436 [1992]; seeRamsey v Ramsey, 69 AD3d 829, 832 [2010]). Present—Scudder, P.J.,Smith, Centra, Fahey and Peradotto, JJ.