Mercado v City of New York

Mercado v City of New York 2009 NY Slip Op 09004 [68 AD3d 730] December 1, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Julio Mercado et al., Respondents,
v
City of New York, Defendant, and Alex Pierre, Appellant.

—[*1] Grossman & Grossman, P.C., New York, N.Y. (Brett M. Grossman of counsel), for appellant.

Pacheco & Lugo, PLLC, Brooklyn, N.Y. (Betty Lugo of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Alex Pierre appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Kings County (Knipel, J.), dated June 30, 2008, as denied that branch of his motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (4), and (2) so much of an order of the same court (Schmidt, J.), dated November 26, 2008, as denied his separate motion to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (4).

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.

The plaintiff commenced three separate actions against, among others, the appellant, under identical complaints, to recover damages for personal injuries resulting from a slip and fall accident on the sidewalk abutting the appellant's premises. The second action was later discontinued. The defendant Alex Pierre moved, inter alia, to dismiss the complaint in the instant action, which was the third action, insofar as asserted against him pursuant to CPLR 3211 (a) (4) based on the pendency of the first action, and separately moved to dismiss that complaint insofar as asserted against him pursuant to CPLR 3211 (a) (4) based on the pendency of the second action at the time the third action was commenced. The Supreme Court denied that branch of the appellant's motion, and the appellant's separate motion, and dismissed the first action. We affirm.

CPLR 3211 (a) (4) permits the dismissal of a cause of action where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires" (see Moreo v Regan, 140 AD2d 313, 314 [1988]). "[W]hen two actions for the same relief are pending, it is within the court's discretion to dismiss a prior pending action instead of dismissing the later action pursuant to CPLR 3211 (a) (4)" (Great W. Bank v Terio, 200 AD2d 608, 609 [1994], citing Dunn v Dunn, 86 AD2d 772 [1982]; see Siegel, Supplementary Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3211:18). Here, the Supreme Court providently exercised its discretion in denying that branch [*2]of the appellant's motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (4), and the appellant's separate motion for the same relief (see Moreo v Regan, 140 AD2d at 314; Dashew v Cantor, 85 AD2d 619 [1981]; Ferrandino v Cartelli, 12 AD2d 604 [1960]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:16; Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.20). Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.