| Jadron v 10 Leonard St., LLC |
| 2015 NY Slip Op 00730 [124 AD3d 842] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Zdeno Jadron, Appellant, v 10 Leonard Street,LLC, et al., Respondents. |
Scott R. Housenbold (Dunne, Browne & Varcadipane, LLC, New York, N.Y.[Jeffrey W. Varcadipane], of counsel), for appellant.
Lazer Aptheker Rosella & Yedid, P.C., Melville, N.Y. (Giuseppe Franzella andRussell L. Pezner of counsel), for respondents.
In an action, inter alia, to set aside an alleged fraudulent conveyance pursuant toDebtor and Creditor Law article 10, the plaintiff appeals (1) from an order of theSupreme Court, Dutchess County (Pagones, J.), dated October 25, 2013, which grantedthe defendants' motion pursuant to CPLR 3211 (a) (4) to dismiss the amended complaint,and (2), as limited by his brief, from so much of an order of the same court dated March14, 2014, as, inter alia, upon renewal, adhered to the original determination.
Ordered that the order dated October 25, 2013, is reversed, on the law, thedefendants' motion pursuant to CPLR 3211 (a) (4) to dismiss the amended complaint isdenied, and the order dated March 14, 2014, is vacated; and it is further,
Ordered that the appeal from the order dated March 14, 2014, is dismissed asacademic in light of our determination on the appeal from the order dated October 25,2013; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant Robert A. McAlpine is a real estate developer and the sole memberand manager of the defendants 10 Leonard Street, LLC (hereinafter 10 Leonard), and 10Boulevard, LLC (hereinafter 10 Boulevard). On the morning of October 21, 2010, theplaintiff was injured when he fell approximately 30 feet from the roof of a building onproperty owned by 10 Leonard which was being converted into artist live/work lofts.Approximately two months later, on December 28, 2010, the plaintiff commenced apersonal injury action in the Supreme Court, Suffolk County, against several parties,including 10 Leonard, 10 Boulevard, and the project's general contractor, McAlpineConstruction Company, Inc., seeking to recover damages for common-law negligenceand violations of Labor Law §§ 200, 240 (1) and 241 (6). In hispersonal injury complaint, the plaintiff alleged that he had been injured in a fall from abuilding located at 10 Leonard Street in Beacon, and that the defendants 10 Leonard and10 Boulevard both owned, managed, controlled, and maintained the premises. OnDecember 30, 2010, two [*2]days after the personalinjury action was commenced, 10 Leonard transferred approximately one half of itsproperty, including the portion containing the artist live/work lofts building, to 10Boulevard.
More than two years later, while various motions and cross motions for summaryjudgment were pending in the personal injury action, the plaintiff commenced the instantaction in the Supreme Court, Dutchess County, against McAlpine, 10 Leonard, and 10Boulevard seeking, inter alia, to set aside the alleged fraudulent conveyance of 10Leonard's property to 10 Boulevard pursuant to Debtor and Creditor Law article 10. Thedefendants moved pursuant to CPLR 3211 (a) (4) to dismiss the amended complaint inthe instant action on the ground that another action was pending between the parties. TheSupreme Court granted the defendants' motion, and subsequently adhered to itsdetermination.
Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whetheran action should be dismissed on the ground that there is another action pending betweenthe same parties for the same cause of action (see Whitney v Whitney, 57 NY2d731, 732 [1982]; Cherico,Cherico & Assoc. v Midollo, 67 AD3d 622 [2009]). A court may dismissan action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of theparties, the two actions are sufficiently similar, and the relief sought is substantially thesame (see Scottsdale Ins. Co. vIndemnity Ins. Corp. RRG, 110 AD3d 783, 784 [2013]; Matter of Willnus, 101 AD3d1036, 1037 [2012]). It is not necessary that "the precise legal theories presented inthe first action also be presented in the second action" (Matter of Willnus, 101AD3d at 1037; see SyncoraGuar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 96 [2013]; Simonetti v Larson, 44 AD3d1028, 1029 [2007]). The critical element is whether both suits arise out of the samesubject matter or series of alleged wrongs (see Scottsdale Ins. Co. v Indemnity Ins.Corp. RRG, 110 AD3d at 784; DAIJ, Inc. v Roth, 85 AD3d 959, 960 [2011]; Cherico,Cherico & Assoc. v Midollo, 67 AD3d at 622).
Here, the personal injury action and the instant action do not arise out of the samesubject matter or series of alleged wrongs, and do not seek the same or substantiallysimilar relief. The personal injury action arises from the defendants' alleged breach ofLabor Law § 200 and the common-law duty to provide a safe workplace,and their alleged violations of the safety requirements imposed on property owners byLabor Law §§ 240 (1) and 241 (6). The sole relief sought in thepersonal injury action is a money judgment for damages. The instant action arises fromthe post-accident transfer of title of approximately one half of 10 Leonard's property to10 Boulevard, and the plaintiff seeks various relief authorized by Debtor and CreditorLaw article 10, including setting aside the alleged fraudulent conveyance. Contrary to thedefendants' contention, the claims asserted in both actions are not "sufficiently similar" towarrant dismissal simply because the plaintiff raised an argument pertaining toconstructive fraud as a basis for the imposition of liability upon 10 Boulevard forviolation of Labor Law § 240 (1) in the personal injury action. Accordingly,the Supreme Court should not have granted the defendants' motion pursuant to CPLR3211 (a) (4) to dismiss the amended complaint in the instant action (see Kent Dev.Co. v Liccione, 37 NY2d 899, 901 [1975]; Red Barn Country, LLC v Trombley, 120 AD3d 1537[2014]; Rinzler v Rinzler,97 AD3d 215, 217-218 [2012]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d1035, 1036 [2009]; Haller v Lopane, 305 AD2d 370 [2003]). Eng, P.J.,Mastro, Roman and Miller, JJ., concur.