Cunningham v City of New York

[*1] Cunningham v City of New York 2014 NY Slip Op 51887(U) Decided on December 31, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570581/13

Benjamin Cunningham, Reena Cunningham and Mahima Cunningham, Plaintiffs-Appellants,

against

City of New York, Attn Corporation Counsel, John Doe, Jane Doe, P.O. Frank Lucia, P.O. Richard Baboolal, Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered March 11, 2014, which denied their motion for leave to renew a prior order granting defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(4).

Per Curiam.

Order (Eddie J. McShan, J.), entered March 11, 2014, affirmed, without costs.

Civil Court providently exercised its discretion in denying plaintiffs' motion to renew, since the purportedly new evidence would not have changed the outcome of defendants' prior motion to dismiss the complaint on the ground that there was a prior action pending (see CPLR 3211[a][4]). The presence in the within action of an additional party-defendant not named in the prior action is not fatal to defendants' CPLR 3211(a)(4) dismissal motion, where both suits arise out of the same subject matter or series of alleged wrongs (see Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 370 [2007]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 94 [1997]; see also Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 31, 2014