2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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Nevertheless, because all of the valid claims remaining in the amended 2017 complaint have
been asserted in the proposed amended 2015 complaint, and because Stable is the only defendant
left in the 2017 action and is the only current defendant in the 2015 action, in the exercise of this
Court's discretion (Whitney v Whitney, 57 NY2d 731 [1982]), the balance of the
amended 2017 complaint, i.e., those portions of the first, second, third, and twelfth causes of
action that have not already been dismissed, are dismissed on the ground that there is another
action pending, namely the 2015 action. See CPLR 3211 (a) (4). There is no reason why
plaintiffs needed to commence the 2017 action, soon thereafter serve the amended 2017
complaint, and then seek leave to serve a virtually identical proposed amended 2015 complaint.
There are substantial identities of the parties, and "'both suits arise out of the same subject matter
or series of alleged wrongs.'" White Light Prods. v On The Scene Prods., 231 AD2d 90,
94 (1st Dept 1997) (quoting Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]); see also 2445 Creston Ave., LLC v Gold
Star Gift Shop, 117 AD3d 631, 632 (1st Dept 2014) (denial of motion to dismiss
subsequent action reversed, and action dismissed where claims "were or could be asserted" in
prior action).

Although leave for Dogwood LLC to replead the eighth cause of action in the instant action
may have been appropriate had this complaint not been dismissed, Dogwood LLC will not suffer
any prejudice, because the amended 2017 complaint's eighth cause of action is largely identical to
the proposed amended 2015 complaint's derivative seventh cause of action, and any proper relief
can be granted on plaintiffs' motion for leave to amend the 2015 complaint. Furthermore, any