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Posted: November 4, 2016

Dismissal of Subsequent New York Action Under First-in-Time Rule Proper

On October 26, 2016, the Second Department issued a decision in Seneca Specialty Insurance Co. v. T.B.D. Capital, LLC, 2016 NY Slip Op. 07017, upholding the dismissal of an action under the first-in-time rule.

Pursuant to CPLR 3211(a)(4), a party may move for judgment dismissing one or more causes of action asserted against him 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. Here, there is substantial identity of the parties and the causes of action alleged in the Indiana action and this action.

Further, the Indiana action was filed first-in-time. In the context of a motion to dismiss pursuant to CPLR 3211(a)(4) on the ground of another action pending, generally the courts of this state follow the first-in-time rule, meaning that the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere. While certain special circumstances may warrant deviation from this rule, consideration of the relevant circumstances herein does not warrant reversal of the Supreme Court’s discretionary determination to apply the first-in-time rule.

(Internal quotations and citations omitted).

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