Jadron v 10 Leonard St. LLC
Annotate this CaseDecided on October 25, 2013
Supreme Court, Dutchess County
Zdeno Jadron, Plaintiff,
against
10 Leonard Street LLC, 10 BOULEVARD LLC and ROBERT A. McALPINE, Defendants.
1999/2013
SCOTT R. HOUSENBOLD, ESQ.
Attorney for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279
GIUSEPPE FRANZELLA, ESQ.
LAZER, APTHEKER, ROSELLA
& YEDID, P.C.
Attorneys for Defendants
225 Old Country Road
Melville, New York 11747
James D. Pagones, J.
Defendants move for an order, pursuant to CPLR 3211(a)(4), dismissing the plaintiff's complaint.
The Court read and considered the following documents upon this application:
Notice of Motion-Affirmation-Exhibit 1-61-9
Affidavit of Service
Memorandum of Law-Affidavit of Service10-11
Affirmation in Opposition-Exhibits 1-5-12-18
[*2]
Affirmation of Service
Memorandum of Law-Affirmation of Service19-20
Reply Memorandum-Affidavit of Service21-22
Upon the foregoing papers the motion is decided as follows:
In their memorandum of law, defendants state that plaintiff alleges that the transfer of certain real property from 10 Leonard Street LLC to 10 Boulevard LLC was a fraudulent conveyance. Defendants allege that plaintiff has previously raised this issue before the Suffolk County Supreme Court. Specifically, defendants allege that plaintiff has raised the question of whether this property transfer was fraudulent via his motion for summary judgment, which is pending in Suffolk County Supreme Court.
The first action, in Suffolk County Supreme Court, was commenced seeking damages for personal injuries allegedly sustained from a fall while plaintiff worked as a roofer on a commercial real property development project. Relevant to the within action, plaintiff's motion, made pursuant to CPLR 3212, seeks to hold defendants 10 Leonard and 10 Boulevard liable under Labor Law §240(1), alleging that the transfer of the property from 10 Leonard to 10 Boulevard amounts to constructive fraud under the New York State Debtor and Creditor Laws.
On April 1, 2013, plaintiff filed the instant action alleging that the transfer of the property from 10 Leonard to 10 Boulevard was a fraudulent conveyance pursuant to New York Creditor and Debtor Law, seeks the imposition of punitive damages and also seeks to place the premises, i.e. the building, land and any individual units, in constructive trust for the plaintiff.
It is well settled that dismissal is authorized, under CPLR 3211(a)(4), whenever there is another action pending between the same parties for the same cause of action in a court of any state or of the United States (see Cherico, Cherico & Assoc v. Midollo, 67 AD3d 622 [2nd Dept 2009]). The statute clearly affords a court broad discretion in determining whether an action should be dismissed on this ground or such other order be entered as justice may require (see Whitney v. Whitney, 57 NY2d 731 [1982]). As was held in Cherico, Cherico & Associates v. Midollo (67 AD3d 622 [2nd Dept 2009]), a dismissal is permitted whenever there is a substantial identity of the parties and the causes of action. The precise legal theories to be litigated in each [*3]action need not be the same, as long as both lawsuits arise out of the same subject matter or series of alleged wrongs as to render the respective actions duplicative of one another (id.).
Here, in this Court's discretion, it finds that there is substantial identity between the parties to the instant action and the action pending before the Suffolk County Supreme Court, the two actions are substantially similar and the relief sought is substantially the same (see generally Scottsdale Ins. Co. v. Indemnity Ins. Corp. RPG, 2013 NY Slip Op 06557 [2nd Dept 2013]). While the Court recognizes that the that plaintiff's complaint in the Suffolk County matter does not explicitly state a cause of action for fraud under New York Debtor Credit Law, plaintiff's theory of liability in that action requires such a finding so as to hold 10 Boulevard liable for plaintiff's alleged injuries. Plaintiff's moving papers, in the Suffolk County action, state "[a]though not the owner of the property at the time of the accident, 10 Boulevard should be held liable pursuant to Labor Law §240(1) along with 10 Leonard, the owner at the time of the accident, as the transfer of the property from 10 Leonard to 10 Boulevard amounts to constructive fraud." In his memorandum of law in support of the motion pending before the Suffolk County Supreme Court, plaintiff cites to New York State Debtor and Creditor Law §§273, 274, 275, the same sections comprising the first four causes of action in the instant action. The critical element in examining a motion made pursuant to CPLR 3211(a)(4) is whether both suits arise out of the same subject matter or series of alleged wrongs (id.). Clearly, the plaintiff's personal injury suit and the defendants' 10 Leonard and 10 Boulevard liability thereunder arise out of the same actionable wrong and involve the same legal issues as presented to this court via the instant action (see Stanley Electrical Service, Inc. v. New York, 26 AD2d 951 [2nd Dept 1966] appeal dismissed 19 NY2d 578). Thus, the issues raised in plaintiff's complaint in the instant action should be resolved by the Suffolk County Supreme Court in the personal injury action pending before it. Accordingly, in the interest of judicial economy, comity and to avoid vexatious litigation and duplication of effort, with the risk of divergent rulings on similar issues, this action must be dismissed (see generally White Light Prods. v. On The Scene Prods., 231 AD2d 90 [1st Dept 1997]). [*4]
Plaintiff's floccinaucinihilipilification of defendants' motion, i.e. alleging that it is worthless pursuant to CPLR 3211(e), is without merit as defendants' motion was previously denied without prejudice by this court.
Based upon the foregoing, defendants' motion is granted in its entirety and plaintiff's complaint is dismissed.
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
October 25, 2013
ENTER
HON. James D. Pagones, A.J.S.C.
102513 decision & order
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