Where two separate actions grounded in the same events are commenced in two different states, will a New York court grant a motion to dismiss the New York action on the basis that there is another action pending in a different state?

(a) Motion to dismiss cause of action.

A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

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4. 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; or

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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 (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Matter of Janet L., 200 AD2d 801, 803 [1994]; Barringer v Zgoda, 91 AD2d 811 [1982]; 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.18). A court may dismiss an action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties and causes of action (see Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Certain Underwriters at Lloyd's, London v Hartford Acc. & Indem. Co., 16 AD3d 167 [2005]; Lopez v Shaughnessy, 260 AD2d 551 [1999]; Proietto v Donohue, 189 AD2d 807 [1993]). It is not necessary that the precise legal theories presented in the first action also be presented in the second action (see Matter of Schaller v Vacco, 241 AD2d 663 [1997]); rather, it is sufficient if the two actions are "sufficiently similar" (Montalvo v Air Dock Sys., 37 AD3d at 567) and that the relief sought is "the same or substantially the same" (Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]; see White Light Prods. v On The Scene Prods., 231 AD2d 90 [1997]). The critical element is that "`both suits arise out of the same subject matter or series of alleged wrongs'" (White Light Prods. v On The Scene Prods., 231 AD2d at 94, quoting Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; see JC Mfg. v NPI Elec., 178 AD2d 505 [1991]).

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Applying these principles to the matter at bar, it is clear that the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant's motion which was to dismiss the complaint on the ground that there was another action pending. The issues raised and relief sought by the complaint in the instant action were substantially the same as the issues raised and relief sought in the pending action— namely, a determination as to whether the plaintiff was entitled to collect legal fees from the defendant, and, if so, the amount of those fees.

In any event, the Supreme Court clearly erred in adhering to its original determination upon reargument, and in denying the plaintiff leave to renew based on evidence of new developments in the Surrogate's Court proceeding (see CPLR 2221). The undisputed documentary evidence submitted by the plaintiff, which included the deed by which the parties and their late father held title to the subject property as joint tenants with rights of survivorship, and an accounting filed by the defendant in the probate proceeding which excluded the subject property from the testamentary estate, clearly demonstrated that the jointly held property was never part of the estate (see Matter of Katz, 43 AD3d 442 [2007]; Matter of Schrier v Tax Appeals Trib. of State of N.Y., 194 AD2d 273, 275 [1993]; Gotte v Long Is. Trust Co., 133 AD2d 212, 215 [1987]) and was beyond the jurisdiction of the Surrogate's Court. Since the property was a nontestamentary asset, the plaintiff properly sought its partition in the Supreme Court. The defendant's sixth affirmative defense of "another action pending" (CPLR 3211 [a] [4]) required a showing that the relief sought in the Supreme Court partition action and in the Surrogate's Court probate proceeding was "substantially the same" (Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; see Alpert v Alpert, 303 AD2d 433 [2003]; Benenson v SKEK Assoc., 293 AD2d 694, 695 [2002]). Since the plaintiff's evidence unequivocally established that these discrete legal proceedings did not seek the same relief or even concern the same property, and there was no other action pending between the parties for the same cause of action in another court (see CPLR 3211 [a] [4]), that branch of the plaintiff's motion which was to dismiss the sixth affirmative defense should have been granted upon reargument and renewal, and the prior order should have been vacated since it was based on a demonstrably false factual representation by the defendant's attorney as to the matters before the Surrogate.

Similarly, even if the defendant were not now judicially

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estopped from arguing the defense of failure to join the Village as a necessary party in the partition action (see CPLR 3211 [a] [10]), that branch of the plaintiff's motion which was to dismiss the third affirmative defense asserting that the plaintiff failed to join a necessary party should have been granted. The plaintiff submitted undisputed documentary evidence demonstrating that the Village possessed no interest in the property which would be affected by the partition so as to mandate its joinder as a defendant (see generally RPAPL 903).

"Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending" (Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 A.D.3d 783, 784, 974 N.Y.S.2d 476; see Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324). "The

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critical element is that ‘both suits arise out of the same subject matter or series of alleged wrongs’ " (Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d 622, 622, 886 N.Y.S.2d 914, quoting White Light Prods. v. On the Scene Prods., 231 A.D.2d 90, 94, 660 N.Y.S.2d 568). Here, the respondent demonstrated that the Virginia action, which was pending at the time the petitioner commenced this proceeding and remained pending at the time the September 2, 2015, order appealed from was issued (see Va.Code Ann. § 20–121.1), arose from the same subject matter and alleged wrongs, and involved the same parties. Accordingly, the Supreme Court providently exercised its discretion by, in effect, granting that branch of the respondent's cross motion which was pursuant to CPLR 3211(a)(4) to dismiss the petition (see Aurora Loan Servs., LLC v. Reid, 132 A.D.3d 788, 788–789, 17 N.Y.S.3d 894; Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 A.D.3d at 784–785, 974 N.Y.S.2d 476; DAIJ, Inc. v. Roth, 85 A.D.3d 959, 959–960, 925 N.Y.S.2d 867).

Dismissal is also not warranted on the ground that the tortious interference claim is duplicative of a claim brought against defendant in a related litigation by two corporate entities indirectly owned by plaintiff. CPLR 3211(a)(4) authorizes dismissal where "there is another action pending between the same parties for the same cause of action." Here, there does not exist the requisite "substantial" identity of parties (see White Light Prods. v. On the Scene Prods., 231 A.D.2d 90, 94, 660 N.Y.S.2d 568 [1st Dept.1997]). Although Thibodeau is named as a defendant in both actions, there is no overlap in plaintiffs. "[I]ndividual principals of a corporation are legally distinguishable from the corporation itself" and a court may not "find an identity of parties by, in effect, piercing the corporate veil without a request that this be done and, even more importantly, any demonstration by defendant that such a result is warranted" (Morgulas v. Yudell Realty, 161 A.D.2d 211, 213, 554 N.Y.S.2d 597 [1st Dept.1990]).

Furthermore, the subject matter of the two suits, although related, is not sufficiently similar to merit dismissal. While both actions involve claims for tortious interference with business relations based at least in part on the same set of emails, the claim in the instant action relates to interference with plaintiff's relationships with parties who would otherwise have been willing to work with him on theater projects, whereas the claim in the related action focuses solely on the corporate entities' relationship with the key investor. Similarly, whereas the damages sought in the instant action are to plaintiff himself and his career, the damages sought in the related action are to the musical as a result of the investor's withdrawal of support.

As the Appellate Division (91 A.D.2d 530, 531, 457 N.Y.S.2d 4) properly held, there is no bar to a stockholder's institution of an appraisal proceeding in addition to challenging the merger in his individual capacity by an action primarily requesting equitable relief under subdivision (k) of section 623 of the Business Corporation Law on the ground that it is fraudulent or unlawful to the shareholder (see Breed v. Barton, 54 N.Y.2d 82, 85-86, 444 N.Y.S.2d 609, 429 N.E.2d 128; Matter of Weiss v. Summit Organization, 80 A.D.2d 526, 436 N.Y.S.2d 6; Matter of Menschel v. Fluffy Rest., 75 A.D.2d 525, 426 N.Y.S.2d 761). The appraisal action should not be dismissed on the ground that there is "another action pending" (CPLR 3211, subd. par. 4) because the other action is not "for the same cause of action" (id.). The two claims are not identical--one seeks to enforce appraisal rights and the other, equitable relief from the merger (see Matter of Weiss v. Summit Organization, 80 A.D.2d 526, 436 N.Y.S.2d 6, supra; Matter of Menschel v. Fluffy Rest., 75 A.D.2d 525, 426 N.Y.S.2d 761, supra). The appraisal action may be stayed until the equitable action is resolved (see Matter of Menschel v. Fluffy Rest., 75 A.D.2d 525, 426 N.Y.S.2d 761, supra).

Supreme Court providently exercised its discretion in denying defendants' motions to dismiss pursuant to CPLR 3211(a)(4) based on another action pending, or pursuant to CPLR 327 for forum non conveniens, or alternatively, to stay this action, which was filed a day before defendants-appellants commenced an action against plaintiffs in Delaware, seeking to litigate most, but not all, of the same issues. New York courts generally follow the first-in-time-rule, which instructs that "the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere" (City Trade & Indus., Ltd. v New Cent. Jute Mills Co., 25 NY2d 49 [1969]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 94 [1st Dept 1997]). However, "chronology is not dispositive," especially, where, as here, this action at the early stages of litigation or filed in close proximity (IRX Therapeutics, Inc. v Landry, 150 AD3d 446, 447 [1st Dept 2017]). Nevertheless, here New York has a more substantial nexus to the parties and the dispute, and this action is more comprehensive than the Delaware action.

Moreover, the fact that "New York is the logical and proper place . . . to go forward," negates any inference that this constitute preemptive litigation intended to deprive defendants of their chosen forum (Seneca Ins. Co. v Lincolnshire Mgt., 269 AD2d 274, 275 [1st Dept 2000]), and defendants-appellants offer no compelling reason why they should be entitled to their choice

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of forum. Defendants also bear some responsibility for the duplicative litigation, given that they commenced the Delaware action after learning that plaintiffs had commenced this action.

The motion court further erred in denying defendant's motion for dismissal of the action, based on CPLR 3211(a)(4), in favor of the earlier-filed federal action. Indeed, New York courts generally follow the so-called “first-in-time” rule, which provides “the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere” (see White Light Prods. v. On The Scene Prods., 231 A.D.2d 90, 96, 660 N.Y.S.2d 568 [1st Dept. 1997], quoting City Trade & Indus., Ltd. v. New Cent. Jute Mills Co., 25 N.Y.2d 49, 58, 302 N.Y.S.2d 557, 250 N.E.2d 52 [1969], quoting H.M. Hamilton & Co. v. American Home Assur. Co., 21 A.D.2d 500, 506, 251 N.Y.S.2d 215 [1st Dept. 1964] ).

Syncora argues that the absence of one common defendant across the two actions is inconsistent with application of the first-in-time rule (citing Morgulas v. J. Yudell Realty, Inc., 161 A.D.2d 211, 554 N.Y.S.2d 597 [1st Dept. 1990]). This argument is not persuasive. When considering whether to dismiss a later filed action, courts will determine whether there is a “sufficient identity” of parties (White Light Prods., 231 A.D.2d at 93–94, 660 N.Y.S.2d 568). Indeed, substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4)( id. at 94, 660 N.Y.S.2d 568). Thus, where, as here, a plaintiff seeks the same damages for the same alleged injuries relating to the same transaction from close corporate affiliates, a court may properly make a finding that parties have “substantially similar” identities for purposes of the first-in-time rule.

Syncora further argues that because the federal action consisted of breach of contract claims while this action consists of fraudulent inducement and tortious interference claims, the later filed

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case cannot be dismissed because the two cases do not address the same legal issues. This argument also lacks merit. To be sure, in the two actions, Syncora asserts different legal theories, but it seeks to recover for the same alleged harm based on the same underlying events. It is not necessary that the “precise legal theories presented in the first action also be presented in the second action” (Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d 622, 622, 886 N.Y.S.2d 914 [2d Dept. 2009]; see Schaller v. Vacco, 241 A.D.2d 663, 663, 659 N.Y.S.2d 587 [3d Dept. 1997] [dismissing action as duplicative “although the precise legal theories” presented in the case differed from those presented in the first filed action]). Rather, “[t]he critical element is that both suits arise out of the same subject matter or series of alleged wrongs” (Cherico, 67 A.D.3d at 622, 886 N.Y.S.2d 914; see also UBS Sec. LLC, 86 A.D.3d at 474, 927 N.Y.S.2d 59 [finding in a res judicata analysis that while the claim against defendant in the original action arose out of its alleged obligation to indemnify plaintiff for actions by plaintiff's affiliates, and claims against defendant in the second action arose out of its alleged manipulation of those affiliates, the two claims formed a single factual grouping, as both were related to the same business deal and raised the same issue]).

Here, both actions arise out of the same transaction, involve the same allegations concerning Bear Stearns's and EMC's concerted actions in the “mortgage-loan-securitization chain” and seek the same recovery for the same alleged injuries—that is, recovery of “claims payments made and to be made” under the policy. Thus, dismissal is also warranted under CPLR 3211(a)(4).

Accordingly, the order of the Supreme Court, New York County (Charles E. Ramos, J.), entered May 4, 2012, which denied defendant's motion for summary judgment dismissing the complaint as barred by the principles of res judicata or for dismissal under CPLR 3211(a)(4) on the ground that there is another action pending, should be reversed, on the law, without costs, and defendant's motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 21, 2015, to the extent they

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denied defendants' motion to dismiss the complaint pursuant to CPLR 327(a) and CPLR 3211(a)(4), or, alternatively, to stay the action pursuant to CPLR 2201 in favor of a first-filed action in Louisiana, unanimously affirmed, with costs.

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With respect to CPLR 3211(a)(4), as the service of process in the New York action preceded the service of process in the Louisiana action, the New York court was the first to take jurisdiction over this matter (see Syncora Guar. Inc. v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 95, 970 N.Y.S.2d 526 [1st Dept.2013]). While the application of the first-in-time rule is discretionary and not controlling, especially where, as here, the competing actions were commenced within a short time (see White Light Prods. v. On The Scene Prods., 231 A.D.2d 90, 99, 660 N.Y.S.2d 568 [1st Dept.1997]), there is another factor that weighs heavily in favor of maintaining jurisdiction in New York: the New York action is based solely on the loan documents, while the pending Louisiana action includes claims related to the purported joint venture (see id. at 94, 660 N.Y.S.2d 568). Thus, the court also providently exercised its discretion in declining to stay the action pursuant to CPLR 2201 (see 952 Assoc., LLC v. Palmer, 52 A.D.3d 236, 236–237, 859 N.Y.S.2d 138 [1st Dept.2008]).

Pursuant to CPLR 3211(a)(4), “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... there is another action pending between the same parties for the same cause of action in a court of any state” (CPLR 3211[a][4]; see Liebert v. TIAA–CREF, 34 A.D.3d 756, 757, 826 N.Y.S.2d 339). Here, there is substantial identity of the parties and the causes of action alleged in the Indiana action and this action (see Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d 622, 622, 886 N.Y.S.2d 914; White Light Prods. v. On the Scene Prods., 231 A.D.2d 90, 94, 660 N.Y.S.2d 568).

Further, the Indiana action was filed “first-in-time.” In the context of a motion to dismiss pursuant to CPLR 3211(a)(4) on the ground of another action pending, generally the courts of this state follow the first-in-time rule, meaning that “ ‘the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere’ ” (L–3 Communications Corp. v. SafeNet, Inc., 45 A.D.3d 1, 7, 841 N.Y.S.2d 82, quoting City Trade & Indus., Ltd. v. New Cent. Jute Mills Co., 25 N.Y.2d 49, 58, 302 N.Y.S.2d 557, 250 N.E.2d 52 ; see White Light Prods. v. On the Scene Prods., 231 A.D.2d at 93, 660 N.Y.S.2d 568 ; see also Simonetti v. Larson, 44 A.D.3d 1028, 1029, 845 N.Y.S.2d 369). While certain special circumstances may warrant deviation from this rule (see L–3 Communications Corp. v. SafeNet, Inc., 45 A.D.3d at 7, 841 N.Y.S.2d 82), consideration of the relevant circumstances herein does not warrant reversal of the Supreme Court's discretionary determination to apply the first-in-time rule (cf. id. at 7–10, 841 N.Y.S.2d 82; San Ysidro Corp. v. Robinow, 1 A.D.3d 185, 186–187, 768 N.Y.S.2d 191; White Light Prods. v. On the Scene Prods., 231 A.D.2d at 100, 660 N.Y.S.2d 568).

Defendant, a Texas resident, did not establish that his telephone and email contacts with plaintiff's chief executive officer in New York were, as a matter of law, insufficient to warrant exercise of personal jurisdiction over him pursuant to CPLR 302(a)(1) (see Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007]; C. Mahendra [NY], LLC v. National Gold & Diamond Ctr., Inc., 125 A.D.3d 454, 457, 3 N.Y.S.3d 27 [1st Dept.2015] ).

Nevertheless, the motion court providently exercised its discretion in dismissing this action based on the pendency of an action in federal court in Texas concerning the same alleged contract (see Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324 [1982]; see also CPLR 3211 [a][4]). In the Texas action,

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defendant and two other individuals not named as parties in this action allege that plaintiff breached a contract. The Texas action is thus more comprehensive than this declaratory judgment action and will address defendant's claim that the parties never entered into an enforceable contract; moreover, dismissal of this action in favor of the Texas action will avoid duplicative, vexatious litigation (see White Light Prods. v. On The Scene Prods., 231 A.D.2d 90, 660 N.Y.S.2d 568 [1st Dept.1997]; Continental Ins. Co. v. Polaris Indus. Partners, 199 A.D.2d 222, 223, 606 N.Y.S.2d 164 [1st Dept.1993]). Further, the record shows that the dispute has a significant nexus with Texas since the three individuals seeking to enforce the alleged contract with plaintiff are Texas residents, all work contemplated under the alleged contract was to be done in Texas, and plaintiff reached out to defendant for the specific purpose of expanding its business into Texas and making use of defendant's connections there in an effort to raise capital.

Although this action was filed first, chronology is not dispositive, particularly since both actions are at the earliest stages of litigation (see San Ysidro Corp. v. Robinow, 1 A.D.3d 185, 186, 768 N.Y.S.2d 191 [1st Dept.2003]), and since the format of this action (i.e., a declaratory judgment action) suggests that it was responsive to defendant's threat of litigation (see L–3 Communications Corp. v. SafeNet, Inc., 45 A.D.3d 1, 9, 841 N.Y.S.2d 82 [1st Dept.2007]). The record also suggests that plaintiff commenced this action preemptively in an effort to gain a tactical advantage and deprive defendant of his choice of forum (id.; Certain Underwriters at Lloyd's, London v. Hartford Acc. & Indem. Co., 16 A.D.3d 167, 791 N.Y.S.2d 90 [1st Dept.2005]).