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Action Should Not Have Been Dismissed Pursuant to CPLR 3211 (a)(4)—Action Was Not “Sufficiently Similar” to Pending Action

The Second Department determined Supreme Court should not have dismissed an action pursuant to CPLR 3211 (a)(4) because the dismissed action was not “sufficiently similar” to a pending action.  The initial personal injury action stemmed from alleged Labor Law violations. The second action, alleging a fraudulent conveyance, stemmed from the defendant’s transfer of the property where plaintiff was injured:

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” … . The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs … .

Here, the personal injury action and the instant action do not arise out of the same subject matter or series of alleged wrongs, and do not seek the same or substantially similar relief. The personal injury action arises from the defendants’ alleged breach of Labor Law § 200 and the common-law duty to provide a safe workplace, and their alleged violations of the safety requirements imposed on property owners by Labor Law §§ 240(1) and 241(6). The sole relief sought in the personal injury action is a money judgment for damages. The instant action arises from the post-accident transfer …, and the plaintiff seeks various relief authorized by Debtor and Creditor Law article 10, including setting aside the alleged fraudulent conveyance. Contrary to the defendants’ contention, the claims asserted in both actions are not “sufficiently similar” to warrant dismissal simply because the plaintiff raised an argument pertaining to constructive fraud as a basis for the imposition of liability … for violation of Labor Law § 240(1) in the personal injury action. Jadron v 10 Leonard St LLC, 2015 NY Slip Op 00730, 2nd Dept 1-28-15

 

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