SHAW FUNDING LP v. BENNETT (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered April 13, 2022.  The order, insofar as appealed from, granted that branch of the cross-motion of the defendant Archibald Bennett which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant Archibald Bennett (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Queens.  Thereafter, the defendant cross-moved, inter alia, pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him on the ground that there was another foreclosure action pending between the same parties.  In an order entered April 13, 2022, the Supreme Court, among other things, granted that branch of the defendant's cross-motion.  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” (DAIJ, Inc. v. Roth, 85 A.D.3d 959, 959, 925 N.Y.S.2d 867;  see Cooper v. Thao, 162 A.D.3d 980, 981, 80 N.Y.S.3d 376).  “The 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 [internal quotation marks omitted];  see Aurora Loan Servs., LLC v. Reid, 132 A.D.3d 788, 789, 17 N.Y.S.3d 894).

Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant's cross-motion which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him.  The defendant demonstrated that, at the time the plaintiff commenced this mortgage foreclosure action, there was another action pending to foreclose the same mortgage involving substantially identical parties (see HSBC Bank USA, N.A. v. Pena, 187 A.D.3d 724, 725, 130 N.Y.S.3d 354;  Aurora Loan Servs., LLC v. Reid, 132 A.D.3d at 789, 17 N.Y.S.3d 894).

The plaintiff's remaining contentions are either without merit or not properly before this Court.

DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.