HSBC Bank USA, N.A. v Pena

HSBC Bank USA, N.A. v Pena 2020 NY Slip Op 05494 Decided on October 7, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 7, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
ROBERT J. MILLER
JOSEPH J. MALTESE
BETSY BARROS, JJ.
2018-09476
(Index No. 68770/15)

[*1]HSBC Bank USA, National Association, etc., appellant,

v

Sharon Pena, etc., respondent, et al., defendants.

Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for appellant.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Kathie E. Davidson, J.), dated July 13, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendant Sharon Pena which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this mortgage foreclosure action against the defendant Sharon Pena (hereinafter the defendant), among others. The defendant moved, inter alia, pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against her on the ground that there was another action pending between the same parties. The Supreme Court granted that branch of the defendant's motion, and the plaintiff appeals.

"Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" (Cooper v Thao, 162 AD3d 980, 981 [internal quotation marks omitted]; see CPLR 3211[a][4]; JPMorgan Chase Bank, N.A. v Luxama, 172 AD3d 1341, 1341). Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211(a)(4) (see JPMorgan Chase Bank, N.A. v Luxama, 172 AD3d at 1341; Cooper v Thao, 162 AD3d at 981). At the time the plaintiff commenced this action, there was another pending action to foreclose the same mortgage involving substantially identical parties, and the relief sought in that action implicated the same issues raised by the plaintiff in this action. Moreover, the plaintiff never sought to discontinue the prior action (cf. MLB Sub I, LLC v Grimes, 170 AD3d 992, 994).

Accordingly, we affirm the order insofar as appealed from.

SCHEINKMAN, P.J., MILLER, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court