DIETZ v. LINDE GAS NORTH AMERICA LLC (2019)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about November 21, 2018, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(4) or, in the alternative, stay the action pursuant to CPLR 2201, to the extent of staying the action pending a decision on a motion to dismiss in the pending New Jersey action, unanimously affirmed, without costs. Appeal from order, same court (Joel M. Cohen, J.), entered April 29, 2019, which denied plaintiffs' motion for reargument, unanimously dismissed, without costs, as taken from a non-appealable order.

Supreme Court providently exercised its discretion in granting and then continuing a stay of this litigation pending an outcome in the New Jersey action, given the substantial identity of parties and claims in the two actions and the fact that the New Jersey action involves more comprehensive claims, including New Jersey statutory claims alleging racketeering and securities fraud, which encompass the issues in this litigation (AIG Fin. Prods. Corp. v. Penncara Energy, LLC, 83 A.D.3d 495, 922 N.Y.S.2d 288 [1st Dept. 2011]; see also Delos Megacore Ltd. v. Omega Invs. Ltd., 152 A.D.3d 417, 54 N.Y.S.3d 857 [1st Dept. 2017]; cf. Matter of Uni–Rty Corp. v. New York Guangdong Fin., Inc., 117 A.D.3d 427, 489, 985 N.Y.S.2d 487 [1st Dept. 2014] [stay of state action alleging fraudulent conveyance not granted where federal action did not involve issues of fraudulent conveyance] ).

The New York forum selection clause in the parties' share purchase agreement is permissive, not mandatory, and does not preclude the litigation in New Jersey, as plaintiffs contend (see AIG Fin. Prods., 83 A.D.3d at 496, 922 N.Y.S.2d 288; cf. Carlyle CIM Agent, L.L.C. v. Trey Resources I, LLC, 148 A.D.3d 562, 50 N.Y.S.3d 326 [1st Dept. 2017] [New York actions not dismissed in favor of Oklahoma proceeding in which defendants filed counterclaims where forum selection clause mandatory as to defendants required them to commence any cause of action against the plaintiff in state or federal court in New York County] ).

No appeal lies from that part of the April 23, 2019 order denying reargument (Forbes v. Giacomo, 130 A.D.3d 428, 11 N.Y.S.3d 485 [1st Dept. 2015], lv. dismissed in part, denied in part 26 N.Y.3d 1047, 22 N.Y.S.3d 409, 43 N.E.3d 766 [2015]).

We have considered plaintiffs' remaining arguments and find them to be unavailing.