        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

854
CA 13-01343
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


RED BARN COUNTRY, LLC, PLAINTIFF,
AND GARY HAFNER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LINDA TROMBLEY, DEFENDANT-RESPONDENT.


WOODRUFF LEE CARROLL, SYRACUSE, FOR PLAINTIFF-APPELLANT.

CURTIN & DEJOSPEH, P.C., CAZENOVIA (CHRISTINA F. DEJOSEPH OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered October 29, 2012. The order, insofar as
appealed from, granted that part of defendant’s motion seeking to
dismiss the plaintiffs’ amended complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is denied in
its entirety and the amended complaint is reinstated.

      Memorandum: Plaintiffs commenced this action seeking to recover
money paid by Gary Hafner (plaintiff) to discharge a mortgage on
property owned by defendant, his sister. Plaintiff and his father
(hereafter, decedent) each owned various parcels of land that
comprised the family farm and obtained a single note and mortgage
encumbering those parcels. Plaintiff and decedent thereafter
defaulted on the mortgage, and the bank commenced a foreclosure
action, at which time decedent conveyed certain parcels that were
subject to the mortgage to defendant, his daughter. Decedent conveyed
his remaining parcels that were subject to the mortgage to plaintiff,
who in turn sold them to Red Barn Country, LLC (Red Barn). As part of
the transaction with Red Barn, plaintiff was required to pay off the
mortgage. Decedent commenced an action seeking to set aside the
transfer of the property to defendant and, after his death, the action
was dismissed by Supreme Court on the ground that it was duplicative
of a proceeding pending in Surrogate’s Court “surrounding the
distribution of the assets of [decedent’s] Estate.” Defendant moved,
inter alia, to dismiss the instant action on the ground that the
issues raised herein likewise should be resolved in the action in
Surrogate’s Court, and plaintiff appeals from an order granting that
part of defendant’s motion. We reverse the order insofar as appealed
from.
                                 -2-                           854
                                                         CA 13-01343

     Pursuant to CPLR 3211 (a) (4), “[a] party may move for judgment
dismissing one or more causes of action . . . 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.” “In
determining whether two causes of action are the same, we consider
‘(1) [whether] both suits arise out of the same actionable wrong or
series of wrongs[ ] and (2) as a practical matter, [whether] there
[is] any good reason for two actions rather than one being brought in
seeking the remedy’ ” (Rinzler v Rinzler, 97 AD3d 215, 217; see Kent
Dev. Co. v Liccione, 37 NY2d 899, 901; JC Mfg. v NPI Elec., 178 AD2d
505, 506; Mullins v Saul, 130 AD2d 634, 636). We conclude that CPLR
3211 (a) (4) is not applicable here inasmuch as the parties are not
the same nor are the causes of action or the relief sought the same.
The “ ‘actionable wrong’ ” in the action in Surrogate’s Court was the
transfer of the disputed property to defendant, whereas the
“ ‘actionable wrong’ ” in this action was defendant’s failure to pay
the mortgage on the disputed property (Rinzler, 97 AD3d at 217). The
court therefore erred in dismissing the amended complaint because
“neither the parties nor the causes of action in the two [actions] are
the same or even substantially similar” (Zabel v Karasik, 184 AD2d
436, 436; see Ramsey v Ramsey, 69 AD3d 829, 832).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
