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Current Developments in the Commercial Divisions of the
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Posted: March 7, 2017

No Dismissal Because of Prior Pending Action; Relief Sought Not Substantially the Same

On February 23, 2017, the First Department issued a decision in Wimbledon Financing Master Fund, Ltd. v. Bergstein, 2017 NY Slip Op. 01451, affirming the denial of a motion to dismiss based on the existence of a prior pending action, explaining:

Supreme Court providently exercised its broad discretion under CPLR 3211(a)(4) to deny appellants’ motion to dismiss this turnover proceeding under CPLR article 52 based on the pendency of a prior plenary action. While there is some overlap between the parties and claims in this proceeding and the earlier-filed plenary action, the nature of the relief sought is not substantially the same, and the respondents named herein are not identical to the defendants sued in the plenary action. Moreover, given that both this proceeding and the plenary action are pending before the same Justice, appellants will not be prejudiced by the simultaneous pendency of the two related matters.

(Internal quotations and citations omitted).

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