PACKES v. CENDANT MORTGAGE CORPORATION (2005)

In an action, inter alia, to recover damages for fraud in the inducement, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Nelson, J.), dated February 3, 2004, which granted the motion of the defendant Cendant Mortgage Corporation pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, which was converted to a motion for summary judgment.

ORDERED that the order is affirmed with costs.

The claims asserted by the plaintiffs in this action are identical to the claims asserted as counterclaims by the plaintiff James A. Packes, Jr., in a prior action commenced by the defendant Cendant Mortgage Corporation (hereinafter Cendant).   Although Cendant was awarded summary judgment in the prior action, the counterclaims were severed and, on the record before us, remain unresolved.   Accordingly, Cendant is entitled to dismissal of the present action on the basis that “there is another action pending between [Cendant and Packes] for the same cause[s] of action” (CPLR 3211[a][4] ).

Furthermore, the court correctly determined that, aside from the plaintiff James A. Packes, Jr., the other named plaintiffs had neither privity nor “a relationship so close as to approach that of privity” necessary to sustain a cause of action sounding in tort against Cendant (Prudential Ins. Co. of Am. v. Dewey Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 382, 590 N.Y.S.2d 831, 605 N.E.2d 318).