DESILVO v. SPLEN CONSTRUCTION INC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated March 26, 2025.  The order, insofar as appealed from, granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

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

In September 2022, the plaintiff commenced an action against the defendant Splen Construction, Inc. (hereinafter Splen), among others, alleging, inter alia, that on September 9, 2022, she tripped and fell on a sidewalk abutting certain premises due to Splen's negligence (hereinafter Action No. 1).  In an order dated October 30, 2024 (hereinafter the October 2024 order), the Supreme Court, among other things, granted Splen's oral application to strike the complaint in Action No. 1 insofar as asserted against it.  The plaintiff appealed from the October 2024 order, and this Court determined that the Supreme Court should not have granted Splen's oral application to strike the complaint insofar as asserted against it in Action No. 1 (see DeSilvo v. Cun Gui Zheng, ––– AD3d –––– [decided herewith] ).

Meanwhile, on November 1, 2024, the plaintiff commenced this action against Splen, alleging, inter alia, that on September 9, 2022, she tripped and fell on a sidewalk abutting certain premises due to Splen's negligence (hereinafter Action No. 2).  In December 2024, Splen moved pursuant to CPLR 3211(a) to dismiss the complaint in Action No. 2, arguing, among other things, that Action No. 1 was still pending.  In an order dated March 26, 2025, the Supreme Court, inter alia, granted the 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 AD3d 959, 959;  see Whitney v. Whitney, 57 N.Y.2d 731, 732;  Mazzei v. Kyriacou, 139 AD3d 823, 824).  Here, the plaintiff does not dispute that both Action No. 1 and Action No. 2 arise from the same subject matter and alleged wrongs and seek substantially the same relief against Splen.  Further, in the related appeal, this Court determined that the Supreme Court should not have granted Splen's oral application to strike the complaint insofar as asserted against it in Action No. 1 (see DeSilvo v. Cun Gui Zheng, ––– AD3d –––– [decided herewith] ), which reinstates the complaint in Action No. 1 against Splen.  In light of our determination in Action No. 1, in the exercise of our discretion, we affirm the March 26, 2025 order insofar as appealed from, granting Splen's motion pursuant to CPLR 3211(a) to dismiss the complaint in Action No. 2, because a prior action, Action No. 1, is pending against Splen (see CPLR 3211[a][4];  Zanani v. Sutton Apts. Corp., 193 AD3d 536, 537;  Fischer v. RWSP Realty, LLC, 53 AD3d 594, 595).

The parties' remaining contentions need not be reached in light of our determination.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.