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Current Developments in the Commercial Divisions of the
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Posted: July 18, 2015

Action Dismissed in Favor of Other Pending Action

On May 7, 2015, Justice Grays of the Queens County Commercial Division issued a decision in A&N Food Market, Inc. v. Amerasia Bank, 2015 NY Slip Op. 30976(U), dismissing a lawsuit in favor of another pending action, explaining:

Pursuant to CPLR 3211(a)( 4), a court has broad discretion in determining whether a cause of action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action. A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs. In light of the foregoing factors, the Court finds that the first cause of action for declaratory relief must be dismissed, pursuant to CPLR 3211(a)(4), on the ground that another action is pending between the parties for the same relief that is sought in this cause of action. This is highlighted by the October 31, 2013, Order of the court in the prior action permitting Amerasia Bank to intervene in the prior action in order to seek a determination of the superiority of interests in the subject collateral as between the plaintiff and Amerasia Bank. In the court’s finding that a material issue of fact exists regarding whether Amerasia Bank possesses a superior security interest in the subject collateral and whether the plaintiff or Amerasia Bank is entitled to foreclose on its security agreement, it is clear that the claims asserted in the prior action are identical to the claims for declaratory relief asserted in this action.

(Internal quotations and citations omitted) (emphasis added).

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