___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00730 [2nd Dept,. 2015]
There were two actions pending between the parties, and the question was whether the second action should be dismissed pursuant to CPLR 3211 (a)(4), on the grounds that the first action was already pending.
The plaintiff had been injured while working on the roof of a building owned by the defendants, and sued in Supreme Court, Suffolk County, alleging various Labor Law violations. The defendants included two LLCs which plaintiff alleged owned and maintained the building, the sole member of the LLCs, and the general contractor. Two days after the personal injury action was commenced, one of the LLCs transferred half of its assets to the other.
Two years later, while the action was in full swing, plaintiff commenced another action, in Supreme Court, Dutchess County, seeking to set the conveyance aside as fraudulent under the Debtor and Creditor Law. The defendants moved to dismiss the second action, on the grounds of the pendency of the first.
“Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action. A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that ‘the precise legal theories presented in the first action also be presented in the second action’ (Matter of Willnus). The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs.” [citations omitted]
The parties in these two actions may have been substantially identical, but the other elements were missing. The actions arise out of different alleged wrongs, and sought different relief. The first arose out of a claimed breach of the duties imposed under common law and the Labor Law to provide a safe workplace, while the second arose out of a claimed fraudulent conveyance. The personal injury action sought money damages, while the second action sought to set the conveyance aside.
Since the claims were not similar, the second action should not have been dismissed.
It should be noted, incidentally, that even had the actions been similar, dismissal need not have been the result. CPLR 3211 (a)(4) specifically allows the court to order whatever justice requires as an alternative to dismissal. Therefore, a joint trial or even outright consolidation could have been a permitted result.