

Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen (2016 NY Slip Op 08170)





Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen


2016 NY Slip Op 08170


Decided on December 6, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 6, 2016

Renwick, J.P., Saxe, Gische, Webber, JJ.


2390 154681/14

[*1]Stewart Title Insurance Company, etc., Plaintiff-Appellant,
vWingate, Kearney & Cullen, also known as Wingate, Kearney & Cullen, et al., Defendants-Respondents.


Thomas G. Sherwood, LLC, Garden City (Amy E. Abbandondelo of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Stewart G. Milch of counsel), for respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 20, 2015, which granted defendants' motion to dismiss the complaint, pursuant to CPLR 3211(a)(4), on the ground that there is another action pending between the same parties for the same cause of action in Kings County, and denied plaintiff's cross motion to stay the action pending a determination of the appeal in the Kings County action, unanimously affirmed, with costs.
Two of the causes of action in the instant action are identical to the two causes of action asserted in the Kings County action, which has been reinstated on appeal (Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen, 134 AD3d 924 [2d Dept 2015], lv dismissed 27 NY3d 950 [2016]). The third, brought pursuant to RPAPL 1501(4), arises out of the same facts as the other claims and asserts a closely related theory. Since in determining a motion to dismiss pursuant to CPLR 3211(a)(4), "it is inconsequential that different legal theories or claims were set forth in the two actions" (Shah v RBC Capital Mkts. LLC, 115 AD3d 444, 444-445 [1st Dept 2014]), the motion court properly exercised its discretion in dismissing the instant action.
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2016
CLERK


