SHEPPARD v. COUNTY OF SUFFOLK (2026)

DECISION & ORDER

In a putative class action, inter alia, for declaratory relief and to recover damages for constitutional violations and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated November 19, 2024.  The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(4) to dismiss the second amended complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3211(a)(4) to dismiss the second amended complaint is denied.

In this putative class action, the plaintiffs alleged in their second amended complaint, inter alia, that certain fees charged by the Suffolk County Traffic and Parking Violations Agency constituted an illegal tax.  The defendants moved, among other things, pursuant to CPLR 3211(a)(4) to dismiss the second amended complaint, on the ground that another, “nearly identical proposed class action,” asserting the same claims against the same defendants, was already pending before the same court.

The plaintiffs opposed the defendants' motion.  The plaintiffs contended, inter alia, that a motion to dismiss the other action was currently pending, and if the other action were to be dismissed, then that branch of the defendants' motion which was pursuant to 3211(a)(4) should be denied as academic.  The defendants thereafter submitted a reply affirmation in further support of their motion, in which they informed the Supreme Court that the other action had been dismissed and included a copy of the order directing dismissal of the other action.  The defendants nevertheless contended that the dismissal of this action pursuant to CPLR 3211(a)(4) was still warranted.

In an order dated November 19, 2024, the Supreme Court, inter alia, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(4) to dismiss the second amended complaint.  The plaintiffs appeal.

CPLR 3211(a)(4) permits a court, in its discretion and upon a motion by a party, to dismiss a complaint 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 or the United States” (see DAIJ, Inc. v Roth, 85 AD3d 959, 959).  “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” (id.).

Here, however, at the time the Supreme Court decided the defendants' motion, the other action that the defendants contended was substantially similar to the case at bar had already been dismissed.  With the dismissal of that action, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(4) to dismiss the second amended complaint became academic (see Nakazawa v Horowitz, 50 AD3d 985, 986;  Diaz v Philip Morris Cos., Inc., 28 AD3d 703, 704–705;  Kung v Farinella, 277 AD2d 427, 427).  Accordingly, the court erred in granting that branch of the defendants' motion.

The defendants' remaining contentions are without merit.

CHAMBERS, J.P., VOUTSINAS, TAYLOR and HOM, JJ., concur.