N.Y. C.P.L.R. § 3211

Section 3211(a)(4) permits a court to make an order that justice requires when a prior action between the parties is pending, without dismissing the present action.

Cogen Properties, Ltd. v. Griffin · filed 1974-08-23(a)(4)

Assuming, arguendo, that the prior action between the parties is still pending and was not a nullity because of a jurisdictional defect, this court need not dismiss the present action but may make such order as justice requires (CPLR 3211, subd. [a], par, 4).

Section 3211(a)(4) permits a court to dismiss a cause of action sua sponte when an earlier action between the same parties can resolve all its issues.

Kent Development Co. v. Liccione · filed 1974-09-23(a)(4)

As to the first cause of action, there is another action pending between the same parties to that cause, which other action was previously instituted by appellant in the Supreme Court, Putnam County. All of the issues sought to be raised here can be tried in that action. This court, therefore, sua sponte, dismisses the first cause of action (CPLR 3211, subd. [a], par. 4).

Section 3211 permits dismissal of counterclaims and defenses that duplicate claims pending in a separate action.

Screen Gems-Columbia Music, Inc. v. Hansen Publications, Inc. · filed 1973-09-25(a)(4), (a)(6), (b)

The further portion of plaintiffs-appellants’ motion, not passed upon by the court, pursuant to CPLR 3211 (subd. [a], pars. 4, 6) and CPLR 3211 (subd. [b]) dismissing each and every claim asserted in the answer whether labeled ... on stated grounds is granted to the extent of severing the cross claims, counterclaims, setoffs and affirmative defenses and dismissing them in this action. There is another action pending by defendants for the same relief and the issues raised may properly be considered in such action.

Section 3211(a)(4) permits an interests-of-justice order concerning another pending action only on a motion by the party against whom both actions are pending.

Arol Development Corp. v. Goodie Brand Packing Corp. · filed 1975-07-03(a)(4)

While CPLR 3211 (subd [a], par 4) permits the court to make any order in the interests of justice, in the case of a motion to dismiss a prior action pending, the power of the court to make such order derives solely from a motion made by the party against whom both actions are pending at the same time. Although there were two prior actions pending, such cross motion to dismiss was made by Goodie for lack of jurisdiction and not because of a prior action pending under CPLR 3211 (subd [a], par 4).

Section 3211(a)(4) does not require dismissal of a second action merely because another action between the same parties seeks the same relief.

Clark v. Bilt-Rite Land Corp. · filed 1975-09-03(a)(4)

With respect to the second ground of objection, even assuming that there is a prior action pending between the same parties for the same relief, the court is no longer required by statute to dismiss the second action (see CPLR 3211, subd [a], par 4).

Section 3211(a)(4) does not support dismissal based on a suit pending in a foreign jurisdiction.

ABKCO Industries, Inc. v. Lennon · filed 1975-11-25(a)(4)

Pendency of suit in a foreign jurisdiction does not support a dismissal on grounds of prior action pending.

CPLR 3211(a)(4) permits a court to stay an action while a pending federal proceeding resolves an issue necessary to its disposition.

Conserve Power Energy, Inc. v. Abco Refrigeration Supply Corp. · filed 1975-12-01(a)(4)

Upon this court’s own motion, the trial of this action is ... stayed pending the ultimate determination of the proceedings pending in the United States District Court for the Eastern District of New York entitled Matter of Gotham Equip. Corp. (see CPLR 3211, subd [a], par 4).

Section 3211(a)(4) does not warrant dismissal when the plaintiff was not a party to the other action and that action has ended in a final judgment.

Wager v. Haberman · filed 1975-12-20(a)(4)

Equally unavailing is that branch of defendant’s motion for an order pursuant to CPLR 3211 (subd [a], par 4), dismissing the action upon the ground that another action is pending between the parties for the same relief. Plaintiff Sylvia Wager was not a party to the Civil Court action. Moreover, that action has been terminated by the rendition of final judgment.

CPLR 3211(a)(4) permits dismissal of a counterclaim also pending in another action, but does not authorize dismissal of defenses or the entire answer on that ground.

Two Clinton Square Corp. v. Gorin Stores, Inc. · filed 1976-01-09(a)(4)

(5) and (6) Although the second and third affirmative defenses and the counterclaim are also contained in another action pending between these parties, CPLR 3211 (subd [a], par 4) relied on by Special Term authorizes dismissal of a cause of action on this ground and not dismissal of defenses. The counterclaim, therefore, could properly be dismissed on this ground, but not the affirmative defenses nor the entire answer.

Section 3211(a)(4) lets a court dismiss a second suit seeking identical relief or make another order as justice requires.

Merigone v. Seaboard Capital Corp. · filed 1976-02-11(a)(4)

CPLR 3211 (subd [a], par 4) provides that if there is a second suit pending for identical relief, a court can dismiss the suit before it, or it can make any other order "as justice requires.”

A pending action does not warrant dismissal under CPLR 3211(a)(4) when it does not raise the same issue of illegality.

Hillside Colony Inc. v. Barbolt · filed 1976-02-17(a)(4)

This contention is, of course, asserted as a separate ground for dismissal (CPLR 3211, subd [a], par 4). However, close examination of the article 7 petition (and of the precedent protests) yields no support to the contention that the issue of illegality, in the sense of jurisdiction or authority, is thereby tendered.

A pending contempt proceeding does not require dismissal under Section 3211(a)(4) of a later proceeding based on subsequent acts.

Friendly Ice Cream Corp. v. Great Eastern Mall, Inc. · filed 1976-02-24(a)(4)

The prior pending contempt proceeding does not require dismissal of the subsequent contempt proceeding under CPLR 3211 (subd [a], par 4), and Special Term so held. ... In the instant case the second proceeding is based upon acts by defendant’s agents occurring after the first proceeding, and plaintiff has shown by independent affidavits that defendant’s security guards enforced the illegal ice cream cone regulation against plaintiff’s patrons on at least four occasions from February 18, 1975 through April 14, 1975.

Section 3211(a)(4) permits dismissal of a second action between the same parties when the first action seeks identical relief.

Martins v. Ford · filed 1976-07-12(a)(4)

However, it was unnecessary for her to commence a second suit setting forth such a claim in view of the fact that in the first action she seeks identical relief (see CPLR 3211, subd [a], par 4).

Section 3211(a)(1) permits dismissal when documentary evidence provides a complete defense to the causes of action in the complaint.

Suburban Broadcasting Corp. v. RCA Corp. · filed 1976-02-17(a)(1)

The documentary evidence was a complete defense to the several causes of action in the complaint. Accordingly, the complaint was properly dismissed.

Section 3211(a)(4) does not warrant dismissal for another pending action when the proceedings do not involve the same parties and causes of action.

Brody v. Leamy · filed 1977-02-28(a)(4)

The within application also presents an argument for dismissal on the ground that another cause of action between the same parties is pending (CPLR 3211, subd [a], par 4), which must be rejected since the same parties and same causes of action are not directly involved in the twin proceedings (Kent Dev. v Liccione, 37 NY2d 899; cf. Olmstead v Britton, 48 AD2d 536).

CPLR 3211(a)(4) requires comparing the complaints before dismissing an action because another action is pending for the same cause.

Security Title & Guaranty Co. v. Wolfe · filed 1977-03-03(a)(4)

To warrant dismissal on that basis a comparison must first be made of the allegations of the two complaints to determine whether the suits are indeed for the same cause of action.

Section 3211(a)(4) does not permit dismissal based on another action when that action cannot provide the relief sought and therefore is not for the same cause.

City of Mount Vernon v. State Board of Equalization & Assessment · filed 1977-04-07(a)(4)

Because the relief sought by the plaintiffs is primarily directed to an increase in defendant Consolidated Edison’s assessments, and as they are limited in the article 7 proceedings to opposing further reductions in such assessments, this is not an action between the same parties for the same cause of action subject to dismissal under CPLR 3211 (subd [a], par 4).

Section 3211(a)(4) permits dismissal when a viable concurrent action between the same parties seeks the same relief.

Litz Enterprises, Inc. v. Standard Steel Industries, Inc. · filed 1977-04-07(a)(4)

However, it is the fact of the existence of a viable contemporaneous litigation between the same parties for the same relief which brings about the granting of relief, pursuant to CPLR 3211 (subd [a], par 4).

A request to dismiss under CPLR 3211(a)(4) becomes moot when the other action is no longer pending.

McFerran v. Board of Education · filed 1977-07-14(a)(4)

Since there is no longer a pending Federal action, the question of whether this second Supreme Court action should be dismissed pursuant to CPLR 3211 is moot (see 10 Carmody-Wait 2d, NY Prac, § 70:283).

Section 3211(a)(4) gives courts discretion to make an order that justice requires when another action is pending.

Wasserbauer v. Marine Midland Bank · filed 1977-11-22(a)(4)

CPLR 3211 (subd [a], par 4) provides courts with discretion to adopt such "order as justice requires”.

Section 3211(a)(4) permits unconditional dismissal when another action between the parties is pending and the circumstances warrant it.

Thompson v. Mary Immaculate Hospital Division of Catholic Medical Center of Brooklyn & Queens, Inc. · filed 1978-01-30(a)(4)

Under all of the circumstances of this case—and particularly the preclusion orders of the Supreme Court, Queens County, dated September 10, 1976 and January 25, 1977, respectively, it was an improvident exercise of discretion not to ...unconditionally grant defendant’s motion to dismiss the Nassau County action pursuant to CPLR 3211 (subd [a], par 4).

Section 3211(a)(4) gives a court discretion to dismiss a New York action when an action between the same parties is pending in another state.

Gersten v. Gersten · filed 1978-02-07(a)(4)

It is discretionary with the court whether to dismiss an action in the courts of this State because of the pendency of another action between the same parties in a court of a sister State. (CPLR 3211, subd [a], par 4.) And in the exercise of our discretion, we decline to dismiss the New York action.

Section 3211(a)(4) allows a court to consolidate actions involving identical counterclaims instead of dismissing them because another action is pending.

O'Connor v. O'Connor-Mosher and Co. · filed 1978-02-17(a)(4)

CPLR 3211 (subd [a], par 4) states that "the court need not dismiss upon this ground but may make such order as justice requires”. Since these actions involve identical counterclaims, the consolidation ordered by Special Term was a proper means of eliminating multiplicity of actions (see CPLR 602, subd [a]).

Section 3211(a)(4) permits a stay of a later New York action when an earlier action involving the same cause is pending in another state.

Psaty v. Psaty · filed 1978-03-07(a)(4)

Plaintiff husband’s New York action for separation is stayed for the reason that it was brought subsequent to defendant wife’s divorce action in the State of Washington (CPLR 3211, subd [a], par 4). The fact that plaintiff husband wants to amend his complaint from one of separation to divorce leaves no doubt that the causes of action are the same (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:15, pp 21-23).

Section 3211(a)(4) permits dismissal of a declaratory judgment action when another pending action between the same parties will resolve the same issues.

Harry M. Stevens, Inc. v. Medina · filed 1978-06-20(a)(4)

The complaint should be dismissed. (CPLR 3211, subd [a], par 4.) Where there is no necessity for resorting to the declaratory judgment it should not be employed. ... Another action is pending involving the same parties and issues in which plaintiff will have a resolution of the question which he presents here.

Section 3211(a)(4) does not require dismissal of interrelated counterclaims when some were not pleaded in the prior pending action.

Cook v. Mea-Mobiate, Inc. · filed 1978-12-04(a)(4)

We find that the counterclaims include a series of interrelated causes of action, some of which were not pleaded in the prior action between the parties now pending in Federal court, and, for that reason, plaintiff’s motion should have been denied in its entirety.

Section 3211(a)(4) makes dismissal for another pending action discretionary, allowing the court to consider each state’s interest in and contacts with the litigation.

Guccione v. Guccione · filed 1979-06-05(a)(4)

Although the New Jersey divorce action was commenced first and CPLR 3211 (subd [a], par 4) allows for dismissal "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”, the granting of such a motion is discretionary. In determining whether such discretion should be exercised the court looks to the greater interest in and contacts with this litigation as between New Jersey and New York. The parties were married here and lived as husband and wife for two years thereafter. Their eldest child was born here. The contacts with New York are at least as significant as those with New Jersey. Therefore defendant’s cross motion to dismiss the cause of action for divorce is denied as to the in rem portion of the divorce action.

Section 3211(a)(4) permits dismissal of a later action that seeks to decide part of a dispute already pending between the parties in federal court.

City of Rochester v. Charles T. Driscoll Masonry Restoration Co. · filed 1979-11-16(a)(4)

Appellant moved to dismiss the complaint as to it, alleging that the complaint does not state a cause of action (CPLR 3211, subd [a], par 7) and that there is a prior action pending between the parties (CPLR 3211, subd [a], par 4). Special Term denied the motion and we reverse on both grounds.

CPLR 3211 permits a party to seek dismissal for a prior action pending before serving a responsive pleading or to raise that issue in a responsive pleading, and permits dismissal or another just order when the prior action exists.

Mannari v. Trinity 21 Corp. · filed 1980-01-07(e) and (a)(4)

(See CPLR 3211, subd [e], which affords a party an option either of moving to dismiss an action, inter alia, because of the pendency of a prior action between the parties, before the service of a responsive pleading, or in the alternative, of raising such issue in a responsive pleading.) ... Therefore, before any trial is commenced in this action, the trial court, on proper papers and after a hearing, if one is necessary, should either (1) dismiss the Supreme Court action unconditionally because of the existence of the Civil Court action, or (2) make such other order as "justice requires” (see CPLR 3211, subd [a], par 4).

Under § 3211(a)(4), priority is considered on a motion based on another action pending between the same parties for the same cause, but it is not necessarily controlling.

Seaboard Surety Co. v. Gillette Co. · filed 1980-04-10(a)(4)

Relying solely upon the basis of priority, the court granted defendant’s motion to dismiss, which was premised upon the pendency of "another action pending between the same parties for the same cause of action” (CPLR 3211, subd [a], par 4). While priority must be considered in weighing such a motion, it is not necessarily the controlling factor, particularly in the circumstances found here.

CPLR 3211(a)(4) does not support dismissal for another action pending when the two actions seek different relief and are not for the same cause of action.

Menschel v. Fluffy Restaurant, Inc. · filed 1980-04-10(a)(4)

Furthermore, as the appraisal proceeding requests relief—appraisal—which is not requested in the earlier plenary action, it is inappropriate to dismiss the appraisal proceeding on the ground of "another action pending” under CPLR 3211 (subd [a], par 4); indeed the two actions cannot be said to be "for the same cause of action.” (CPLR 3211, subd [a], par 4.)

Section 3211(a)(4) permits dismissal or other relief when another action involving the same parties and claims is pending.

Oxhandler Structural Enterprises, Inc. v. Billard · filed 1980-04-25(a)(4)

Billard also resists summary judgment on the ground that there is another action pending between the parties (CPLR 3211, subd [a], par 4). This argument has little weight. Oxhandler has sued in New Jersey in contract and for work, labor and services. It acknowledges that any recovery in this action will be applied to the New Jersey claim. However, the actions are by no means identical. In the New Jersey action, the defendants are Billard, his son, the Billard enterprise and a bank; here the defendant is only the Billard estate. The New Jersey action covers the range of Oxhandler contracts with the Billard enterprises. This action involves only Anthony Billard’s individual note.

CPLR 3211(a)(4) permits a defendant to seek dismissal when another action is pending between the same parties for the same cause of action.

Brown v. Lockwood · filed 1980-09-22(a)(4)

If defendant objected to the maintenance of the second suit he could have moved to dismiss it pursuant to CPLR 3211 (subd [a], par 4) upon the ground that there was "another action pending between the same parties for the same cause of action” (see Siegel, Practice Commentaries, McKinneys. Cons Laws of NY, Book 7B, CPLR C3211:15, p 21).

Section 3211(a)(4) permits dismissal when another action between the same parties involving the same cause is pending, subject to the court's discretion and timely motion requirement.

Jane H. v. Phillip H. · filed 1980-09-30(a)(4)

As indicated above, CPLR 3211 (subd [a], par 4) constitutes the culmination of decisional and statutory standards prescribing guidelines for the exercise of judicial discretion. CPLR 3211 (subd [a], par 4) may be waived by failure to move for judgment based thereon in timely fashion. (CPLR 3211, subd [e].) The distinguishing characteristic of CPLR 3211 (subd [a], par 4) lies in the discretion reposed in the Judge.

Section 3211(a)(4) permits a New York action to be stayed until a previously commenced action in another state is finally determined.

Lynch v. Lynch · filed 1980-12-22(a)(4)

Since the wife’s New Jersey action was validly commenced before the husband’s New'York action, the latter should be stayed until the former is finally determined (see CPLR 3211, subd [a], par 4).

CPLR 3211(a)(4) does not warrant dismissal for another pending action when the parties in the two actions are different.

Pine Plains Lumber Corp. v. Messina · filed 1981-01-15(a)(4)

This appeal followed, and we initially find that the court erred in dismissing the complaint because there was another action pending between the same parties. In this action, the parties are clearly not the same as the parties in the adversary proceeding in Bankruptcy Court wherein plaintiff, in seeking either the return of its $40,000 or specific performance, is proceeding solely against the partnership entity.

Section 3211(a)(4) does not permit dismissal based on another pending action when the relief sought or the factual basis differs.

Bofinger v. Bofinger · filed 1981-01-26(a)(4)

However, if the relief claimed is different or the factual basis thereunder is different, a motion to dismiss under CPLR 3211 (subd [a], par 4) ought not to be permitted.

A summons served with notice but without a complaint does not count as another pending action under CPLR 3211(a)(4).

Campagna v. Dune Alpin Farm Associates · filed 1981-04-20(a)(4)

This is because a summons served with notice but without a complaint does not cqnstitute “another action” within the meaning of CPLR 3211 (subd [a], par 4) (Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:19, p 26).

CPLR 3211(a)(4) does not permit dismissal based on a pending administrative appeal, which is not an action.

Tombler v. Board of Education of Brookhaven-Comsewogue Union Free School District · filed 1981-07-08(a)(4)

There is no merit to the contention that the court lacks jurisdiction of the article 78 proceeding; dismissal of the proceeding would not only violate the legislative scheme but is unavailable under CPLR 3211 (subd [a], par 4) since the pending “action” is not an action but an appeal to an administrative agency and in any event was not the first commenced (see, e.g., Campagna v Dune Alpin Farm Assoc., 81 AD2d 633); and a stay pursuant to CPLR 2201 is not warranted since it has not been shown that the entire matter cannot be adequately reviewed in this forum or that exercise of the expertise of the other forum is required (see, e.g., Research Corp. v Singer-General Precision, 36 AD2d 987).

CPLR 3211(a)(4) does not warrant dismissal of a divorce action based on a pending support and maintenance counterclaim seeking different relief.

Berger v. Berger · filed 1981-10-13(a)(4)

Consequently, defendant’s motion to dismiss plaintiff’s action, pursuant to CPLR 3211 (subd [a], par 4) must be denied.

Section 3211(a)(4) permits dismissal of a counterclaim when another action between the same parties seeks the same relief.

Niagara Recycling, Inc. v. Town of Niagara · filed 1981-11-13(a)(4)

The order insofar as it grants plaintiffs’ cross motion for an order pursuant to CPLR 3211 (subd [a], par 4) dismissing the town’s counterclaims on the ground that there is another action pending between the same parties for the same relief should be affirmed, without prejudice, however, to the right of the town, if it be so advised, to move in the pending action in which it is plaintiff to add Cecos as a party defendant and to amend its complaint therein by adding the alleged violations of Niagara Building Code, Local Law No. 4 of 1979, and section 2 of Niagara Zoning Ordinance (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3211:15).

Section 3211(a)(4) permits dismissal for another pending action only when the actions seek the same or substantially the same relief and the prior action can afford complete relief.

Phelps v. Phelps · filed 1981-11-13(a)(4)

The traditional purpose of a motion under CPLR 3211 (subd [a], par 4) is to prevent a person from being harassed and annoyed by unnecessary actions seeking the same, or substantially the same, relief and growing out of the same subject matter.

Section 3211(a)(4) gives courts discretion to dismiss an action when another action is pending between the same parties for the same cause.

Corio v. Stebo, Inc. · filed 1981-11-24(a)(4)

Dismissal because of the pendency of another action between the same parties is not mandatory, but, rather, discretionary. CPLR 3211 (subd [a], par 4) specifically provides “[T]he court need not dismiss upon this ground but may make such order as justice requires”. ... In such circumstances, this action should not have been dismissed on the basis of the pending Pennsylvania actions, the commencement of which was for purely protective reasons.

Section 3211(a)(4) permits dismissal when another action is pending between the same parties for the same causes of action.

Fox v. Fox · filed 1981-12-21(a)(4)

Therefore, Special Term properly denied her cross motion and dismissed her action for divorce, on the ground that there was “another action pending between the same parties for the same cause[s] of action” (see CPLR 3211, subd [a], par 4).

Section 3211(a)(4) allows a court deciding a motion based on another pending action to make the order justice requires, including dismissing the earlier action.

Dunn v. Dunn · filed 1982-01-29(a)(4)

We, therefore, direct the dismissal of the 1976 action pursuant to our authority to “make such order as justice requires” (CPLR 3211, subd [a], par 4; see, also, CPLR 3216, subd [a]).

Section 3211(a)(4) permits dismissal for another pending action within the United States, but does not apply to an action pending in France.

Mary F.B. v. David B. · filed 1982-02-03(a)(4)

As Professor Siegel indicates, CPLR 3211 (subd [a], par 4) is intended to apply in the case of actions pending within the United States.

Section 3211(a)(4) does not warrant dismissal when the prior pending actions do not seek the same relief.

Azarian v. Ettinger · filed 1982-04-02(a)(4)

Defendants have moved to dismiss plaintiffs’ complaint pursuant to CPLR 3211 (subd [a], par 4) alleging that there are two other actions pending between the parties in Massachusetts seeking the same or similar relief and that New York is an inconvenient forum for trial of the issues. ... From an examination of the various pleadings, we are unable to determine that Special Term erred in holding that the prior Massachusetts actions did not seek the same relief sought by plaintiffs here.

CPLR 3211(a)(4) does not support dismissal based on another action commenced the same day.

City of Rochester v. Chiarella · filed 1982-04-12(a)(4)

Special Term ordered dismissal of the Utilities’ actions pursuant to CPLR 3211 (subd [a], par 4) on the ground that another action (i.e., the class action) was already pending between the parties. This was error. The Utilities’ actions were commenced the same day that the city commenced the class action and therefore the class action cannot be said to have preceded the Utilities’ actions (Avery v Title Guar. & Trust Co., 230 App Div 519; Nacional Financiera v Banco de Ponce, 85 NYS2d 277, affd 275 App Div 832; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.20).

Section 3211(a)(4) permits dismissal when pending actions between the same parties can resolve all issues raised in the complaint.

Kropac v. Long Island Trust Co. · filed 1982-05-03(a)(4)

Order reversed, insofar as appealed from, on the law, without costs or disbursements, and cross motion to dismiss the complaint granted. ... It is clear that all the issues sought to be raised in the declaratory judgment action may be raised as defenses to the pending actions commenced by defendant herein to enforce the note guarantees and to foreclose on a mortgage which secured payments on the notes (see Ithaca Textiles v Waverly Lingerie Sales Co., 24 AD2d 133,134-135, supra).

Section 3211(a)(4) permits dismissal of a later action seeking the same relief against the same party when the plaintiff has already pleaded that relief as a counterclaim in a pending action.

Whitney v. Whitney · filed 1982-05-24(a)(4)

Where a party voluntarily pleads a counterclaim in one action only to later seek the same relief against the same party in a second action, the latter action is subject to dismissal on the ground of another action pending.

Section 3211(a)(4) does not warrant dismissal when the other pending proceeding cannot resolve all the issues or provide prompt relief.

Medina v. Brabert Realty Co. · filed 1982-06-04(a)(4)

So, it is clear that the Civil Court, New York County, Housing Part 49, cannot and will not decide all the issues raised herein. Moreover, equity favors a prompt and expeditious resolution of the disputes which is impossible within landlord’s pending holdover summary proceeding (Lun Far Co. v Aylesbury Assoc., 40 AD2d 794; Cohen v Farber, 65 AD2d 686). Such excludes dismissal, under CPLR 3211 (subd [a], par 4) for another action pending between the same parties for the same cause of action.

Section 3211(a)(4) does not require dismissal when the pending actions are based on different actionable wrongs.

Cardinal Sales, Inc. v. Great Atlantic & Pacific Tea Co. · filed 1982-07-19(a)(4)

The motion was properly denied since the two actions are not based upon the same actionable wrong.

Section 3211(a)(4) permits a court to decline dismissal when another action is pending.

Santora v. Santora · filed 1982-07-29(a)(4)

The third defense is equally unavailing, since a court need not dismiss an action because another one is pending (see CPLR 3211, subd [a], par 4), and in the posture of this case, it should not be a basis for dismissal here.

CPLR 3211(a)(4) does not require dismissal based on another pending action when the parties and issues lack identity.

First American Equity Associates (1973) v. Wofsey Certilman, Haft & Lebow · filed 1982-08-26(a)(4)

The Federal action does not require a dismissal of the instant action because of a lack of identity of parties and issues (CPLR 3211, subd [a], par 4; see National Fire Ins. Co. of Hartford v Hughes, 189 NY 84).

Section 3211(a)(4) gives courts broad discretion to dismiss an action when another action between the same parties on the same cause of action is pending.

Whitney v. Whitney · filed 1982-09-09(a)(4)

CPLR 3211 (subd [a], par 4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action.

Section 3211(a)(4) permits dismissal based on another pending action when both suits arise from the same actionable wrong and there is no good reason to maintain both.

Hinman, Straub, Pigors & Manning, P. C. v. Broder · filed 1982-11-04(a)(4)

The pendency of the infant settlement proceeding in New York County does not qualify as “another action pending between the same parties for the same cause of action” (CPLR 3211, subd [a], par 4) so as to invoke Special Term’s authority to dismiss Action No. 1 on that ground. While it is unnecessary to show that both actions or proceedings pursue the same theories, the movant must prove that both suits arise out of the same actionable wrong and that there is no good reason why one action should not be sufficient to resolve the disputed issues.

When another action is pending, CPLR 3211(a)(4) gives the court broad discretion to dismiss the claim or make another order as justice requires.

Barringer v. Zgoda · filed 1982-12-30(a)(4)

When another action is pending, a “court need not dismiss upon this ground but may make such order as justice requires” (CPLR 3211, subd [al, par 4). Thus, under this provision, a court has broad discretion as to the disposition of an action when another is pending (4 Weinstein-Korn-Miller, NY Civ Prac, pars 3211.18, 3211.24).

Section 3211(a)(4) permits a court to deny dismissal when separate actions are justified and to make an order that justice requires.

Crown Crane Rental Co. v. Eberhart Construction Co. · filed 1983-01-07(a)(4)

CPLR 3211 (subd [a], par 4), in providing for a motion to dismiss a cause of action on the ground that “there is another action pending between the same parties for the same cause of action”, goes on and states that “the court need not dismiss upon this ground but may make such order as justice requires”. Since there was in this situation a valid reason for the institution of separate actions — the insurance coverage of the actual damage claim resulting in subrogation — the court will not grant the motion to dismiss (see Western Int. Hotels Co. v Arista Student Travel Assn., 32 AD2d 630).

A pending action involving different parties and causes of action does not warrant dismissal under CPLR 3211(a)(4).

State v. Schenectady Chemicals, Inc. · filed 1983-02-18(a)(4)

Likewise, dismissal is not warranted under CPLR 3211 (subd [a], par 4) due to “another action pending between the same parties for the same cause of action” ... since the pending case of Thornton v General Elec. does not involve the identical parties and causes of action (Forget v Raymer, 65 AD2d 953).

Section 3211(a)(4) requires dismissal of a second identical action between the same parties when the first action remains pending.

Mayline Co. v. Liebman · filed 1983-03-16(a)(4)

No order was served upon the defendants prior to the institution of the second action. Thus, it is clear that since the plaintiff has served a summons and complaint in an action identical to one that was still pending at the time of the second service of process, a dismissal of the new action pursuant to CPLR 3211 (subd [a], par 4) is mandated.

CPLR 3211(a)(4) gives the court discretion whether to dismiss an action when another action is pending.

Whitney v. Whitney · filed 1983-03-28(a)(4)

Special Term, having incorrectly found that the earlier New York County action was not a prior pending action within the meaning of CPLR 3211 (subd [a], par 4), never exercised its broad discretion under that statute in the first instance, and therefore, the case is now remitted to it for the exercise of its discretion.

CPLR 3211(a)(4) permits a court to consolidate actions instead of dismissing one because another action is pending.

Ackerman v. Vertical Club Corp. · filed 1983-05-19(a)(4)

In any event, CPLR 3211 (subd [a], par 4) states that the court need not dismiss on the ground of the pendency of another action, but may make such order as justice requires. Here an order of consolidation would be more appropriate than dismissal.

A motion to dismiss for a prior action pending may be denied when the parties are not identical and the later action offers a more complete resolution of the dispute.

Safier v. Cohl · filed 1983-06-16(a)(4)

Special Term properly denied defendants’ motion to dismiss on the ground of the pendency of the Kings County action. There was not a complete identity of parties in the two actions, and a more complete resolution of the controversy between plaintiff and defendants herein is available in the Sullivan County action at law for the brokerage commission than in the Kings County action for a declaratory judgment (Iselin-Jefferson Fin. Co. v Ward, 34 AD2d 919; Mann v Mann, 45 Misc 2d 19, affd 22 AD2d 992; Siegel, NY Prac, § 262, pp 321-322).

CPLR 3211(a)(4) does not warrant dismissal when the other proceeding began later and seeks different relief.

Barol v. Barol · filed 1983-06-16(a)(4)

Next, the relief sought here is not the same as plaintiff’s earlier proceeding in Family Court for termination of shelter payments. Under these circumstances, dismissal pursuant to CPLR 3211 (subd [a], par 4) was unwarranted (see Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

Section 3211(a)(4) permits a court to change venue when another action is pending between the parties instead of dismissing the action.

Jensen Associates v. Martens · filed 1983-07-11(a)(4)

In our opinion, Special Term properly exercised its discretion in directing that the venue of this action be changed to New York County (see CPLR 3211, subd [a], par 4; Siegel, NY Prac, § 262, p 321; Stanley Elec. Serv. v City pf New York, 26 AD2d 951, mot for lv to app dsmd 19 NY2d 629).

Section 3211(a)(4) allows a court to decline to dismiss a second action while the first faces a challenge to service and to make an order that justice requires.

Alderman Co. v. American Sleeping Systems Corp. · filed 1983-09-07(a)(4)

CPLR 3211 (subd [a], par 4), which permits dismissal on the grounds of a prior, pending action, does not require that result. It is significant that the rule specifically provides that “the court need not dismiss on this ground but may make such order as justice requires”. Thus, as Professor Siegel notes in the Practice Commentaries to CPLR 3211 (McKinney’s Cons Laws of NY, Book 7B, CPLR C321:16, C321:17), the court can fashion an appropriate order rather than dismiss the second action when there is a jurisdictional attack on the first.

Section 3211(a)(4) does not support dismissal for a prior pending action when a defendant in the current action was not a party to the prior action.

Glatzer v. Scappatura · filed 1984-01-16(a)(4)

Clearly, the two actions differed significantly because defendant Sherman & Citron was added as a party to the instant action, and, therefore, the two actions were not “between the same parties” (CPLR 3211, subd [a], par 4; see, also, Mannari v Trinity 21 Corp., 73 AD2d 911; Brown v Lo Grasso, 203 App Div 50).

CPLR 3211(a)(4) permits dismissal when another action involves the same cause of action and substantially identical parties.

Koren-DiResta Construction Co. v. Albert B. Ashforth Inc. · filed 1984-04-03(a)(4)

We need not reach this issue, however, since we find that this action and the Connecticut action are “for the same cause of action” within the meaning of CPLR 3211 (subd [a], par 4). “Substantial, not complete, identity of parties is all that is required to invoke CPLR 3211 (subd [a], par 4)”.

Section 3211(a)(4) permits a stay based on another pending action even when that action was filed later.

Cohen v. Goldfein · filed 1984-04-17(a)(4)

It does not matter whether this action preceded the Civil Court proceeding in time.

Section 3211(a)(4) does not treat an earlier action as a prior pending action when no complaint was served in it.

Sotirakis v. United Services Automobile Ass'n · filed 1984-04-23(a)(4)

Finally, Special Term acted properly in denying that part of defendant’s motion seeking to dismiss plaintiff’s'complaint pursuant to CPLR 3211 (subd [a], par 4). In view of the fact that a complaint has never been served in the prior action, it did not constitute a prior pending action for the purposes of that section (Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:14, p 20).

Section 3211(a)(4) requires the pending actions to be between the same parties; overlapping actions involving closely related but distinct parties do not satisfy that requirement.

Michael v. S. H. Galleries, Ltd. · filed 1984-05-10(a)(4)

Although the first three causes of action in the complaint in this action (hereinafter action No. 2) are almost identical with the counterclaims alleged by the present plaintiffs as defendants in the action entitled Havadtoy Galleries v Michael (hereinafter action No. 1), and the fourth cause of action in action No. 2 is closely related to the cause of action alleged in the complaint in action No. 1, the actions are not technically “between the same parties”.

A motion to dismiss because another action is pending is discretionary; overlapping claims do not require dismissal when the actions have additional defendants.

Prometheus Books v. Russica Book & Art Shop, Inc. · filed 1984-11-07(a)(4)

Although the proposed amended complaint in action No. 3 sets forth a cause of action for nonpayment for goods sold and delivered which may be said to be duplicative of the relief sought in action No. 2, the motion was one addressed to the discretion of Special Term (CPLR 3211, subd [a], par 4; Whitney v Whitney, 57 NY2d 731), and since there are additional defendants in both actions, the court did not abuse its discretion in denying the motion.

Section 3211(a)(4) does not require dismissal when a pending action seeks a different cause of action, as with a stock appraisal proceeding and an equitable challenge to a merger.

Alpert v. 28 Williams Street Corp. · filed 1984-11-29(a)(4)

The appraisal action should not be dismissed on the ground that there is “another action pending” (CPLR 3211, subd [a], par 4) because the other action is not “for the same cause of action” (id.).

Section 3211(a)(4) permits dismissal of a second action when the parties and causes of action in both actions are substantially identical.

Velez v. Union Sanitorium Ass'n · filed 1984-12-11(a)(4)

Since “there is a substantial identity of the parties in the two actions and of the two causes of action” (Forget v Raymer, 65 AD2d 953, 954), we grant defendant Union Sanitorium’s motion to dismiss action No. 2.

Section 3211(a)(4) requires a court to compare the complaints before dismissing an action because another action is pending, to determine whether they involve the same cause of action.

Lewis v. Jones · filed 1985-01-17(a)(4)

Before a motion pursuant to CPLR 3211 (subd [a], par 4) is granted, “a comparison must first be made of the allegations of the two complaints to determine whether the suits are indeed for the same cause of action” (Security Tit. & Guar. Co. v Wolfe, 56 AD2d 745). Here, an analysis of the allegations set forth in plaintiff’s instant complaint demonstrates conclusively that the remedy sought is personal to plaintiff and seeks recovery for personal losses inflicted upon him by reason of defendants’ misconduct. This is clearly to be distinguished from the form of relief pursued by plaintiff in the shareholder’s derivative suit, which is the only proper form of action when recovery is sought for waste of corporate assets (Lewis v S.L. & E., Inc. 629 F2d 764).

Section 3211(a)(4) permits dismissal based on another action pending despite the absence of a complaint in that action when the party resisting dismissal has asserted that the actions involve identical causes of action.

West Coast Co. v. Grafi · filed 1985-01-29(a)(4)

Notwithstanding their lack of service of a complaint in the Supreme Court actions, the respondents cannot oppose the petitioner’s motion to dismiss the counterclaims based on another action pending (CPLR 3211 [a] [4]) when they are simultaneously asserting by way of affirmative defenses and cross motions that there are indeed prior actions pending between the parties involving identical causes of action.

Section 3211(a)(4) allows a court to stay an action instead of dismissing it when justice requires.

Flintkote Co. v. American Mutual Liability Insurance · filed 1984-10-22(a)(4)

While we conclude that the counterclaims and cross claims in action number one should be dismissed without prejudice because they are unrelated to the main action, we need not dismiss action number two as well “but may make such order as justice requires” (CPLR 3211, subd [a], par 4).

CPLR 3211(a)(4) permits dismissal of a later action against a defendant that became a party to an earlier action by answering as the properly named entity, where the plaintiff accepted the answer without objection.

Velez v. Union Sanitorium Ass'n · filed 1985-04-30(a)(4)

Defendant, Union Sanitorium Association, Inc. (USA), answered that complaint, stating in the pleading that USA was the proper name for the corporate entity allegedly responsible for the injuries. Plaintiff accepted the answer without objection. Under these circumstances, the Appellate Division correctly found that USA was a party to the action. Accordingly, there was no error in dismissing plaintiff’s subsequent action against USA under CPLR 3211 (a) (4).

Section 3211(a)(4) permits a court to stay or dismiss an action pending the outcome of another action involving essentially the same issues.

Rokeby-Johnson v. Kentucky Agricultural Energy Corp. · filed 1985-05-14(a)(4)

In each case, the parties are seeking a declaration as to the validity of the insurance policies; the issues in the two actions are essentially the same, and the Simpson County Bank, the one party originally omitted from the New York action, has since been added thereto. Both actions are now in a very preliminary stage, no answer having been served in either. Under these circumstances, this court may stay or dismiss the instant action pending the outcome of the California litigation (CPLR 3211 [a] [4]).

CPLR 3211(a)(4) does not warrant dismissal for another action pending when the actions involve separate actionable wrongs.

Five Riverside Drive Towers Corp. v. Chenango, Ltd. · filed 1985-06-13(a)(4)

Plaintiffs’ action in Broome County and defendant’s action in Suffolk County do not involve the same actionable wrongs.

Section 3211(a)(4) requires proof that the claims are identical to support dismissal based on another pending action.

Weiss v. Salamone · filed 1986-01-24(a)(4)

Finally, the court did not err in refusing to dismiss the counterclaims on the ground that they were duplicative of claims asserted in a pending action in Federal court (CPLR 3211 [a] [4]). Plaintiff submitted no proof of the identity of the claims (see, Security Tit. & Guar. Co. v Wolfe, 56 AD2d 745).

Section 3211(a)(4) does not bar a second action arising from the same alleged wrongs when the relief sought is substantially different.

Boyer v. New York Property Insurance Underwriting Ass'n · filed 1986-05-08(a)(4)

Moreover, plaintiff’s second complaint, which contains a claim of fraud and seeks punitive damages as well as the value of the policy, does not constitute "another action pending between the same parties for the same cause of action” (CPLR 3211 [a] [4]) because "[although the causes of action in both suits arise out of the same subject matter or series of alleged wrongs, there is good reason for the separate existence of the earlier cause of action * * * since the nature of the relief sought is not the same or substantially the same” (Kent Dev. Co. v Liccione, 37 NY2d 899, 901; see also, National Fire Ins. Co. v Hughes, 189 NY 84).

Section 3211(a)(4) requires the parties in the two actions to be the same.

Stein v. 615 West 130th Street Corp. · filed 1986-06-03(a)(4)

Further, the two actions may not be consolidated because contrary to the requirement of CPLR 3211 (a) (4), the parties are not the same.

When another action between the same parties involves the same cause, subsection (a)(4) permits the court to use a discretionary order to avoid duplicate trials instead of dismissing the claim.

Blank v. Miller · filed 1986-07-10(a)(4)

For these reasons, rather than summarily dismissing Leo’s cause of action, Special Term more properly should have considered other discretionary remedies to avoid duplicity of trials of the same cause by making "such order as justice requires” (CPLR 3211 [a] [4]; see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.24), after notification of all affected parties (Kent Dev. Co. v Liccione, 37 NY2d 899, 902); remittal is therefore necessary for that purpose.

Section 3211(a)(4) permits a court to decline dismissal when another pending action involves different claims that do not arise from the same actionable wrong.

Breiterman v. Elmar Properties, Inc. · filed 1986-10-20(a)(4)

Lastly, the court did not abuse its discretion in refusing to dismiss the action pursuant to CPLR 3211 (a) (4) on the ground that an action between the same parties was pending in Federal court. That Federal action included many additional parties, involved the alleged breach of a settlement agreement and did not relate to the issue of the validity of the loan agreements.

Section 3211(a)(4) gives courts discretion to dismiss when another action is pending; dismissal is not automatic.

Department of Housing Preservation & Development v. Koenigsberg · filed 1986-11-19(a)(4)

Each of the respondents argues that dismissal is required by CPLR 3211 (a) (4). "Automatic” dismissals are neither mandated nor warranted.

Section 3211(a)(4) does not warrant dismissal merely because two actions arise from the same transaction when they seek to redress distinct wrongs and pursue dissimilar relief.

Montgomery Ward & Co. v. Othmer · filed 1987-02-19(a)(4)

Since the claimed wrongs to be redressed and the relief being pursued in these two actions are manifestly dissimilar, dismissal of the complaint herein pursuant to CPLR 3211 (a) (4) is not warranted.

Section 3211(a)(4) permits a stay when an earlier action involves substantially the same parties and issues; complete identity of parties is unnecessary.

Graham v. Dim-Rosy U.S.A. Corp. · filed 1987-03-10(a)(4)

There was complete identity of parties and issue in the dismissed first cause of action and, while plaintiff has joined other parties on his related second cause of action, the essential identity of the parties remains intact. "Substantial, not complete, identity of parties is all that is required to invoke CPLR 3211 (subd [a], par 4) [citations omitted].”

Section 3211(a)(4) permits discretionary dismissal when a pending action between the same parties seeks essentially the same relief for the same actionable wrong.

Healy v. Dentcare Delivery System, Inc. · filed 1987-04-06(a)(4)

In view of the fact that a pending action existed between the same parties for essentially the same relief and involving the same actionable wrong (see, CPLR 3211 [a] [4]; Siegel, NY Prac § 262), Special Term did not abuse its discretion in dismissing the complaint herein.

CPLR 3211(a)(4) permits dismissal of a claim duplicating an earlier action, but does not warrant dismissal of a derivative claim brought by a party who was absent from the earlier action and seeks different relief.

Mullins v. Saul · filed 1987-05-18(a)(4)

Although the court correctly dismissed the infant’s cause of action which was asserted by his mother against Saul because this cause of action involved substantially the same parties, sought the same relief, and evolved from the same wrong as the cause of action previously asserted by the infant’s father (see, Kent Dev. Co. v Liccione, 37 NY2d 899; 4 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3211.21, 3211.22), the court erred in dismissing the mother’s derivative cause of action, since that cause of action involved a party not represented in the earlier action and sought relief which was not sought therein (see, Liebler v Our Lady of Victory Hosp., 43 AD2d 898).

Section 3211(a)(4) permits a court to stay an action when a pending action elsewhere addresses the underlying obligation and judicial economy favors resolving the claim there.

National Union Fire Insurance v. Weir · filed 1987-06-25(a)(4)

National Union is already actively appearing in the Texas action, where defendant Weir’s obligation to pay the promissory note which underlies National Union’s surety is a contested issue. We find, therefore, that convenience and judicial economy would be better served if National Union’s claim against Weir were filed as a counterclaim in the Texas action, and grant defendant’s motion to stay this action for that purpose.

Section 3211(a)(4) permits a court to stay a New York action while a related action proceeds in a suitable forum in another state.

George Hyman Construction Co. v. Precision Walls, Inc. of Raleigh · filed 1987-07-06(a)(4)

Finally, it appears that the North Carolina court is a suitable forum fully capable of affording appropriate relief to the parties to this dispute. Therefore, in an exercise of our discretion pursuant to CPLR 3211 (a) (4), we conclude that the action commenced in the Supreme Court, Westchester County, should be stayed pending the outcome of the lawsuit commenced in North Carolina, particularly the plaintiff’s request that that court decline jurisdiction on the basis of the prime contract’s forum selection clause.

Section 3211(a)(4) cannot be used to prevent the trial of another case by commencing a new action.

City of New York v. Wall Street Racquet Club, Inc. · filed 1987-07-29(a)(4)

The commencement of an action in order to prevent the trial of another not to one’s liking is an improper use of CPLR 3211 (a) (4).

Section 3211(a)(4) requires a party seeking dismissal based on another pending action to show that the actions involve the same parties, the same causes of action, and substantially the same relief.

Mid-State Precast Systems, Inc. v. Corbetta Construction Co. · filed 1987-10-22(a)(4)

To sustain a motion to dismiss under CPLR 3211 (a) (4), the moving party must demonstrate that the pending action is between the same parties for the same causes of action seeking substantially the same relief (see, Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

Section 3211(a)(4) permits dismissal of a second action that duplicates an earlier pending action.

Baumblatt v. Battalia · filed 1987-11-02(a)(4)

Action No. 2 was properly dismissed as duplicative of action No. 1 (CPLR 3211 [a] [4]).

Section 3211 waives the defense of another action pending if it is neither raised in the answer nor asserted in a timely motion to dismiss.

Rennert Diana & Co. v. Kin Chevrolet, Inc. · filed 1988-02-08(a)(4); (e)

We note that Kin failed to raise the defense of another pending action in its answer and failed to timely move for dismissal on this ground. Therefore this defense was waived (see, CPLR 3211 [a] [4]; [e]).

Section 3211(a)(4) permits dismissal when another action involving the same parties and seeking the same relief was pending when the action commenced.

DeBerardine v. Rockland Electric Co. · filed 1988-02-16(a)(4)

Moreover, the complaint should have been dismissed under ...CPLR 3211 (a) (4) since other actions involving the parties seeking the same relief were pending at the time this action was commenced (see, Whitney v Whitney, 57 NY2d 731, on remand 92 AD2d 935; Thompson v Mary Immaculate Hosp., 60 AD2d 912; cf., Flintkote Co. v American Mut. Liab. Ins. Co., 67 NY2d 857).

CPLR 3211(a)(4) permits dismissal of a setoff seeking relief already sought in another pending action between the parties.

Mead Reinsurance Corp. v. Town of Oyster Bay · filed 1988-03-21(a)(4)

The court erred in denying that branch of the plaintiffs motion which was to dismiss a setoff pleaded in the answer on the ground that identical relief was sought by the defendant in another pending action (see, CPLR 3211 [a] [4]; Barringer v Zgoda, 91 AD2d 811).

Section 3211(a)(4) permits dismissal of a cross claim when an independent action between the same parties is pending on the same issue.

Nunez v. Travelers Insurance · filed 1988-04-25(a)(4)

However, in view of the fact that there is an independent action pending between State Farm and Travelers on the same issue raised in the cross claim, the cross claim was properly dismissed (see, CPLR 3211 [a] [4]), and the issue should be determined in the independent action.

CPLR 3211(a)(4) does not warrant dismissal for another action pending when successive service attempts seek to commence a single action.

Moreo v. Regan · filed 1988-05-02(a)(4)

Accordingly, we conclude that the Supreme Court correctly found that the plaintiff’s successive efforts to serve the appellant were directed to the proper commencement of a single action and that dismissal of the action allegedly commenced by the second purported service was not warranted under CPLR 3211 (a) (4).

Section 3211(a)(4) does not warrant dismissal when another action between the same parties involves a different cause of action and seeks different relief.

Parker v. Rich · filed 1988-05-05(a)(4)

When we compare the dismissed Supreme Court action with the subject Civil Court action, which is the alleged other action pending, we find that, although the parties are the same, the cause of action and the relief sought in each action are totally different from each other.

When a related action is pending, CPLR 3211(a)(4) permits a stay through a determination on the merits in that action.

Howard v. New York State Department of Social Services · filed 1988-07-07(a)(4)

In our view, the stay to which petitioner consents should be expanded, in the event that the motion for summary judgment is denied, to continue until the determination of the matter on the merits by District Court.

Section 3211(a)(4) permits dismissal with leave to renew when a pending action is expected to resolve the same issue.

Schlotthauer v. Sanders · filed 1988-08-01(a)(4)

Finally, the fourteenth and fifteenth causes of action for equitable relief were properly dismissed, pursuant to CPLR 3211 (a) (4), with leave to renew. The plaintiff’s claim that the conveyance of Barbara’s property interest to Berlin following the Sheriff’s sale was void ab initio will presumably be determined with respect to his affirmative defense in the partition action.

Section 3211(a)(4) permits dismissal of a separate action when the tenant can raise its defenses in a pending summary proceeding.

Sal De Enterprises, Inc. v. Stobar Realty, Inc. · filed 1988-08-15(a)(4)

Since it is well settled that a court will not stay a summary proceeding pending the outcome of a suit in equity unless the tenant had some equity or defense that could not be raised in the summary proceeding (see, Amoo v Eastlake Realty Co., 133 AD2d 657), the tenant was not ... entitled to the stay and the Supreme Court properly granted the landlord’s cross motion to dismiss the complaint under CPLR 3211 (a) (4).

Section 3211(a)(4) permits dismissal when another action is pending without requiring complete identity of parties or causes of action.

Reo v. Shudt · filed 1988-11-10(a)(4)

Inasmuch as complete identity of the parties and causes of action is not necessary (see, Barringer v Zgoda, 91 AD2d 811; cf, Blank v Miller, 122 AD2d 356) and these issues are before Supreme Court in two other actions, Supreme Court correctly decided to let Shudt’s "alleged impropriety” be resolved in the other pending actions (see, Hinman, Straub, Pigors & Manning v Broder, 89 AD2d 278, 280).

Section 3211(a)(4) permits a court to dismiss an action in its discretion when a related action is pending in another forum.

Demenus v. Sylvester · filed 1989-01-23(a)(4)

Under the circumstances, therefore, we find that the Supreme Court properly exercised its discretion under both CPLR 3211 (a) (4) and 327 in dismissing this action.

CPLR 3211(a)(4) permits dismissal to avoid multiple lawsuits over the same issues, but dismissal is unwarranted when the record does not show that the other litigation will resolve those issues.

DGM Partners-Rye v. Rye City Planning Commission · filed 1989-03-20(a)(4)

We find that the court properly dismissed so much of the petition as challenged the validity of conditions numbered 1 (b), 3 and 6 in order to curtail the multiplicity of lawsuits pending between the petitioner, the city and various city agencies involving this property (see, Kent Dev. Co. v Liccione, 37 NY2d 899; Mullins v Saul, 130 AD2d 634; CPLR 3211 [a] [4]). ... However, the petition should not have been dismissed insofar as it challenged conditions numbered 4 and 5. ... The record does not establish that these issues will be resolved in other pending litigation between the parties.

CPLR 3211(a)(4) does not require dismissal when an earlier action involves the same parties and relief but arises from a different payment default.

Vivian Realty Co. v. Jillandrea Realty Associates · filed 1989-04-20(a)(4)

Although the parties involved and the relief sought in the present foreclosure actions are virtually identical to those involved in the five foreclosure actions commenced in 1984 and subsequently stayed in 1985, the present actions differ from the 1984 actions in that the facts underlying the actions are different. ... defendants’ motions to dismiss on the ground of prior actions pending should have been denied.

CPLR 3211(a)(4) does not permit dismissal based on a related action when the defendants in the two actions are not identical.

LAL Leasing Corp. v. Williams · filed 1989-05-22(a)(4)

Moreover, the complaint could not be dismissed pursuant to CPLR 3211 (a) (4), since the defendants in the instant action and the related action were not identical (see, Baisley v Town of Kent, 111 AD2d 299).

Section 3211(a)(4) permits dismissal of claims duplicating those in another pending action while allowing distinct claims to proceed.

Singh v. Kalish · filed 1989-08-14(a)(4)

Although the two actions commenced against the defendant Kalish are substantially similar, they are not identical. Of significance, while the first seven causes of action in the second complaint are duplicative, the eighth and ninth causes are to recover damages for assault and battery, allegedly resulting from conduct which had occurred after the commencement of the first action. Under these circumstances, we choose to exercise our discretion by granting the defendant Kalish’s motion for dismissal only to the extent of dismissing the first seven causes of action asserted against him and otherwise denying the motion and granting the plaintiff’s cross motion for consolidation pursuant to CPLR 602 (a).

Section 3211(a)(4) permits dismissal when the same claim is pending in another action, even if the later action seeks different monetary relief.

Falzerano v. DeLuca · filed 1989-10-10(a)(4)

The only difference between the instant claim and the cause of action in the prior case is the monetary relief demanded, which does not bar a dismissal pursuant to CPLR 3211 (a) (4) (see, Stanley Elec. Serv. v City of New York, 26 AD2d 951).

CPLR 3211(a)(4) requires substantial, rather than complete, identity of parties when another action is pending.

Case Capital Corp. v. Morgan Investments, Inc. · filed 1989-10-16(a)(4)

We find that the court properly stayed the plaintiffs’ prosecution of the instant New York action based upon another action pending in the Circuit Court of Baltimore County, Maryland, by some of the present defendants against the present plaintiffs (see, CPLR 3211 [a] [4]). Although there is an additional party in the plaintiffs’ action in New York, it is substantial rather than complete identity of parties which is required to invoke that section (see, Barringer v Zgoda, 91 AD2d 811).

Section 3211(a)(4) permits a stay instead of dismissal when another action is pending, especially where dismissal could expose surviving claims to a limitations defense.

Houston v. Trans Union Credit Information Co. · filed 1989-10-31(a)(4)

For this reason, and in light of all of the circumstances attending this case, including the existence of the prior order directing a traverse on the issue of personal jurisdiction, it was an abuse of discretion for the court to have dismissed the action, rather than employ the less drastic remedy of stay.

Section 3211(a)(4) permits dismissal when an earlier action between the same parties seeks essentially the same relief for the same actionable wrong.

GSL Enterprises, Inc. v. Citibank, N. A. · filed 1989-11-02(a)(4)

— Judgment of the Supreme Court, New York County (Harold Tompkins, J.), entered on June 5, 1989, based on an order of the same court entered on May 31, 1989, which granted defendant’s motion pursuant to CPLR 3211 (a) (4) for dismissal of the complaint on the ground of a prior pending action, is unanimously affirmed, without costs. ... The instant complaint was properly dismissed because "a pending action existed between the same parties for essentially the same relief and involving the same actionable wrong”.

When two actions involve the same subject matter and parties, consolidation may be more appropriate than dismissal under CPLR 3211(a)(4).

MediaAmerica, Inc. v. Rudnick · filed 1989-12-07(a)(4)

Since both actions involve the same subject matter and parties, the more appropriate action is consolidation rather than dismissal.

Actions involving different parties and seeking different relief are not duplicative under § 3211(a)(4).

Kelley v. Galina-Bouquet, Inc. · filed 1990-03-20(a)(4)

Following our comparison of the complaint in the contract action with the complaint in the divorce action, we find that the actions are not duplicative of one another, since the actions are against different parties, and the plaintiff seeks different relief in each action (CPLR 3211 [a] [4]; Boyer v New York Prop. Ins. Underwriting Assn., 120 AD2d 363 [1st Dept 1986]).

Section 3211(a)(4) does not warrant dismissal when the second action seeks relief unavailable in the pending action.

Terrille v. Terrille · filed 1990-03-27(a)(4)

Since the constructive trust action seeks relief which is not available to the plaintiff in the divorce action, the motion under CPLR 3211 (a) (4) is denied.

Section 3211(a)(4) allows dismissal based on another pending action when the actions have sufficiently identical parties, but a corporation’s individual principals are distinct from the corporation.

Morgulas v. J. Yudell Realty, Inc. · filed 1990-05-03(a)(4)

Thus, while dismissal under CPLR 3211 (a) (4) is not necessarily defeated by substantial, as opposed to complete, identity of parties (Graham v Dim-Rosy U.S.A. Corp., 128 AD2d 417), which generally is present when at least one plaintiff and one defendant is common in each action (see, Barringer v Zgoda, 91 AD2d 811), individual principals of a corporation áre legally distinguishable from the corporation itself.

Section 3211(a)(4) permits dismissal when another proceeding between the parties for the same cause of action is pending.

Doe v. Board of Health of County of Putnam · filed 1990-05-14(a)(4)

Since there was another proceeding pending between the parties for the same cause of action, the instant proceeding was properly dismissed (see, CPLR 3211 [a] [4]).

Section 3211(a)(4) permits, but does not require, dismissal when another action between the same parties for the same cause is pending.

Colon v. Gold · filed 1990-10-01(a)(4)

CPLR 3211 (a) (4) provides that 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. Dismissal on this ground, however, is not mandatory.

Dismissal under CPLR 3211(a)(4) depends on substantial identity of parties and causes of action in the pending actions.

Blank v. Schafrann · filed 1990-11-21(a)(4)

While there are undoubtedly overlapping issues in this action and civil action No. 2190/79, it is highly questionable whether the criteria for dismissal under CPLR 3211 (a) (4), by way of substantial identity of parties and causes of action, have been met (see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3211.21, 3211.22).

Section 3211(a)(4) does not require dismissal because an earlier action is pending; the court may instead order consolidation.

Mitchell v. New York City Health & Hospitals Corp. · filed 1991-02-25(a)(4)

Clearly the first action does not require dismissal of the second. CPLR 3211 (a) (4), although in a rule involving dismissal of actions, provides "the court need not dismiss upon this ground but may make such order as justice requires”. The well-established rule is that the court should order consolidation (Siegel, NY Prac § 262).

Section 3211(a)(4) permits discretionary dismissal of a petition in the interest of judicial economy when a related action is pending.

Shirley M. v. William M. · filed 1991-09-16(a)(4)

This court is also authorized to dismiss the within petition in the interest of judicial economy under the general provisions of CPLR 3211 (a) (4).

CPLR 3211(a)(4) permits dismissal when a pending action in another court is a more appropriate forum for resolving the issue.

Arlene R. v. Stephen R. · filed 1991-10-09(a)(4)

This court is also authorized to dismiss the within petition in the interest of judicial economy under the general provisions of CPLR 3211 (a) (4). ... This court hereby dismisses the petition for modification on the grounds that an action is pending in the Supreme Court in which the issue would be more appropriately resolved.

Section 3211(a)(4) permits dismissal when a prior action involves substantially the same parties, claims, and relief.

JC Manufacturing, Inc. v. NPI Electric, Inc. · filed 1991-12-16(a)(4)

We reject the appellants’ contention that the court erred in dismissing the first counterclaim and third-party cause of action and the third counterclaim based on a prior action pending among the parties (see, CPLR 3211 [a] [4]). The pleadings in both actions show that both are based on the same contractual agreements and arise out of the same actionable wrongs. Additionally, there is substantial identity of the parties, and the nature of the relief sought is substantially the same.

A summons with notice alone does not establish a prior action pending under CPLR 3211(a)(4); the complaint must be served before the other action begins.

United Enterprises, Ltd. v. Hill · filed 1992-07-23(a)(4)

Service of a summons with notice is insufficient to create a prior action pending pursuant to CPLR 3211 (a) (4) (Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857). As plaintiffs did not serve their complaint prior to commencement of the Federal action in Texas, the court herein properly dismissed the complaint.

Section 3211(a)(4) gives courts discretion when another action is pending; a shared issue alone does not make the causes of action the same.

Walsh v. Goldman Sachs & Co. · filed 1992-08-06(a)(4)

While the court is vested with broad discretion in determining such a motion (see, Whitney v Whitney, 57 NY2d 731), the IAS Court wrongly concluded it was compelled to dismiss on the basis of the pending Federal action and incorrectly determined that because there was a common issue, i.e., age discrimination, that the causes of action were the same.

Section 3211(a)(4) permits dismissal when an action between the same parties arising from the same alleged breach is already pending.

Caggia v. Huguenot Greens, Inc. · filed 1992-11-02(a)(4)

At the time the action was commenced, an action between the identical parties herein, arising out of the same alleged breach of the same contract of sale, was pending in the Civil Court, Richmond County. Therefore, the Supreme Court properly dismissed the complaint in the instant action (see, CPLR 3211 [a] [4]; see, JC Mfg. v NPI Elec., 178 AD2d 505, 506; Falzerano v DeLuca, 154 AD2d 431; Stanley Elec. Serv. v City of New York, 26 AD2d 951).

Dismissal because another action is pending requires substantial identity of parties between the actions.

Proietto v. Donohue · filed 1993-01-19(a)(4)

Since there was no substantial identity of the parties, the court erred in dismissing the complaint under CPLR 3211 (a) (4).

CPLR 3211(a)(4) gives courts broad discretion to dismiss an action when another action between the same parties on the same cause of action is pending.

Barrera v. Barrera · filed 1993-02-01(a)(4)

CPLR 3211 (a) (4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties based on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732). Under the circumstances, dismissal was a proper exercise of discretion.

Section 3211(a)(4) does not warrant dismissal when the other pending action involves a wholly separate cause of action.

Whitehall Tenants Corp. v. 3333 Operating Corp. · filed 1993-02-18(a)(4)

Defendant’s claim that this action should have been dismissed pursuant to CPLR 3211 (a) (4) upon the ground that there is another action pending is without merit inasmuch as the non-payment proceeding commenced in the Civil Court for amounts due under the lease involves a wholly separate cause of action than is involved in this case arising out of separate, albeit contemporaneous, agreements (see, Kent Dev. Co. v Liccione, 37 NY2d 899, 901; Morgulas v Yudell Realty, 161 AD2d 211, 213).

A pending action does not warrant dismissal under CPLR 3211(a)(4) when the later action alleges new violations and seeks different remedies.

Equestrian Associates v. Freidus · filed 1993-04-12(a)(4)

We agree with that part of the order of the Supreme Court which denied a motion by Freidus and Ivory to dismiss the complaint because an action for specific performance was pending in Suffolk County, inasmuch as that action (see, Freidus v Sardelli, supra) was not "another action pending * * * for the same cause of action” (CPLR 3211 [a] [4]). While all of the claims generally arose from the venture agreement, the claims asserted in this action allege new violations of the agreement and seek different remedies (see, Kent Dev. Co. v Liccione, 37 NY2d 899).

Under CPLR 3211(a)(4), a court may decline to dismiss an action when the other pending action involves a different party and seeks distinct relief.

Marcus Dairy, Inc. v. Jacene Realty Corp. · filed 1993-05-10(a)(4)

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s cross motion to dismiss pursuant to CPLR 3211 (a) (4). The appellant is not a party to the plaintiff’s Connecticut action against Freedom Foods to recover on the promissory notes (see, Breiterman v Elmar Props., 123 AD2d 735, 737). In addition, although the appellant’s liability as guarantor is dependent on Freedom Foods’ default on the notes, the relief sought in this action, foreclosure on the mortgage, is distinct from recovery on the notes, and, indeed, is not available to the plaintiff in the Connecticut action (see, CPLR 507; Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

CPLR 3211(a)(4) gives a court discretion to deny a motion to dismiss when another action is pending.

Palmiero v. North Shore University Hospital · filed 1993-06-07(a)(4)

Nor was it an improvident exercise of the Supreme Court’s discretion, under these circumstances, to deny the defendants’ motion to dismiss the wrongful death action pursuant to CPLR 3211 (a) (4).

Section 3211(a)(4) does not warrant dismissal when related actions seek to vindicate sufficiently different rights.

Ferran v. Williams · filed 1993-06-17(a)(4)

Although the two actions emanate from a common series of events, the State action, which alleges common-law trespass, assault and negligence, seeks to vindicate sufficiently different rights than the Federal action, which is based upon the Federal civil rights statute, so that dismissal of the State action is not warranted (see, Montgomery Ward & Co. v Othmer, 127 AD2d 913).

When competing actions begin with summonses with notice, the complaint served first determines which action is prior under Section 3211(a)(4).

Kevorkian v. Harrington · filed 1993-07-28(a)(4)

Although the cases do not discuss whether an action can be "prior” based on a later served complaint, logic impels the court to rely on the complaint which is served first. In this pair of cases Husband’s complaint in the New York County action was served on March 9, while Wife served her complaint in the Rockland action on March 30. Under established CPLR 3211 (a) (4) case law, therefore, the New York County action is "prior”.

Section 3211(a)(4) permits dismissal based on another pending action when the parties are substantially identical and the relief sought is substantially the same.

Babcock & Wilcox Co. v. Control Components, Inc. · filed 1993-10-21(a)(4)

Finally, the branch of CGI’s motion which seeks dismissal based on the fact that "there is another action pending between the same parties for the same cause of action” (CPLR 3211 [a] [4]) is also denied. ... Such a motion may be granted if there is "substantial identity of the parties, and the nature of the relief sought is substantially the same.” (JC Mfg. v NPI Elec., 178 AD2d 505, 506 [2d Dept 1991].) Here, however, the nature of the relief sought in the complaints is not substantially the same.

CPLR 3211(a)(4) permits dismissal when an earlier action involves the same issues and substantially the same parties; the court considers the circumstances of both actions in exercising its discretion.

Employers Insurance of Wausau v. Primerica Holdings, Inc. · filed 1993-12-21(a)(4)

On the basis of the identity of issues in the New York and New Jersey actions and substantial identity of the parties (see, Morgulas v Yudell Realty, 161 AD2d 211, 213), the fact that the New Jersey action, in which discovery had already proceeded, had been commenced six months prior to the New York action, and that plaintiff’s motion to dismiss the New Jersey action on the basis of forum non conveniens had been denied by the New Jersey court, we find no abuse of discretion (see, Chrysler Capital Corp. v Citibank, 186 AD2d 393, 394) in the court’s dismissal on the basis of a prior action pending (CPLR 3211 [a] [4]).

Section 3211(a)(4) permits dismissal in favor of another pending action even when the dismissed action was filed first, if the other action began reasonably close in time and offers more.

Continental Insurance v. Polaris Industries Partners · filed 1993-12-30(a)(4)

Nor did the court abuse its discretion in dismissing the action pursuant to CPLR 3211 (a) (4) (Whitney v Whitney, 57 NY2d 731) even though this action was commenced first, as the Minnesota action was commenced reasonably close in time and offers more than the action herein (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:14, at 24).

Section 3211(a)(4) gives a court broad discretion to dismiss an action when a case between the same parties involving a like issue is pending in another forum.

In re the Guardianship of Janet L. · filed 1994-01-06(a)(4)

Under CPLR 3211 (a) (4), the court enjoys broad discretion to dismiss an action pending between the same parties, dealing with a like issue in another forum (see, Whitney v Whitney, 57 NY2d 731).

When two actions seek the same relief, CPLR 3211(a)(4) gives the court discretion to dismiss the earlier action instead of the later one.

Great Western Bank v. Terio · filed 1994-01-18(a)(4)

Additionally, when two actions for the same relief are pending, it is within the court’s discretion to dismiss a prior pending action instead of dismissing the later action pursuant to CPLR 3211 (a) (4) (see, Dunn v Dunn, 86 AD2d 772, 774).

Section 3211(a)(4) permits a court to stay a New York action instead of dismissing it when a parallel action may end without barring further proceedings in New York.

SafeCard Services, Inc. v. American Express Travel Related Services Co. · filed 1994-04-07(a)(4)

We find that, under such circumstances, the action should not have been dismissed and should, instead, be stayed pending resolution of the Florida action.

Section 3211(a)(4) permits a court to consolidate pending actions in its discretion even when their underlying causes of action differ.

Henry v. Solomon & Solomon, P. C. · filed 1994-04-21(a)(4)

Supreme Court, although concluding that the underlying causes of action were not the same, exercised the discretionary authority vested in it by CPLR 3211 (a) (4) and ordered that this action be consolidated with an action commenced by defendant New York State Higher Education Services Corporation' against plaintiff in the Civil Court of the City of New York. ... Although we have no quarrel with Supreme Court’s exercise of its discretionary authority, it is apparent that the action pending in Civil Court should have been consolidated with this action and removed to Supreme Court, Albany County, in accordance with CPLR 602 (b).

Section 3211(a)(4) generally gives priority to an earlier pending action between the parties, but an action commenced alongside the defendant’s first response in the earlier forum can qualify for the simultaneous commencement exception.

National Union Fire Insurance Co. of Pittsburgh v. Jordache Enterprises, Inc. · filed 1994-06-09(a)(4)

Since New York was, in our view, clearly a proper if not preferable forum for this case (cf., Frank Pompea, Inc. v Essayan, 36 AD2d 745), we view plaintiff’s commencement here, contemporaneous with its earliest response in West Virginia, as satisfying the "simultaneous commencement” exception to the first-in-time rule.

Section 3211(a)(4) permits dismissal of a tax-assessment defense and counterclaim when proceedings challenging the same assessments are already pending.

Town of New Castle v. Blakeman · filed 1994-10-11(a)(4)

Contrary to the appellant’s contentions, the challenge, in the appellant’s first affirmative defense and counterclaim, to the petitioner’s tax assessments of the property in question for the years 1989, 1990, and 1991, based upon the assertion that the assessments were, inter alia, excessive, unequal, or unlawful (see, RPTL 706 [1]), was properly dismissed. The appellant had timely commenced tax certiorari proceedings pursuant to RPTL article 7 challenging the assessment rolls for each of those years. All of the article 7 proceedings were pending at the time the court rendered the order and judgment (see, CPLR 3211 [a] [4]).

CPLR 3211(a)(4) gives courts broad discretion to dismiss an action when another action between the same parties on the same cause of action is pending.

Maier-Schule GMC, Inc. v. General Motors Corp. · filed 1994-12-23(a)(4)

CPLR 3211 (a) (4) vests a court with broad discretion in considering whether to dismiss an action on the ground that ...another action is pending between the same parties on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732; Colon v Gold, 166 AD2d 406, 407).

CPLR 3211(a)(4) does not require dismissal of one spouse’s divorce action when the other spouse’s pending divorce action is based on different grounds.

Graev v. Graev · filed 1995-09-21(a)(4)

The court did not abuse its discretion in denying the motion to dismiss (see, Whitney v Whitney, 57 NY2d 731, on remand 92 AD2d 935, 936), as the action by one spouse for divorce on one set of grounds is not an action "for the same cause of action” (CPLR 3211 [a] [4]) as an action by the other spouse based on different grounds (Kevorkian v Harrington, 158 Misc 2d 464, 468).

Section 3211(a)(4) does not treat a prior proceeding as another action pending when it lacks the same parties and the same cause of action.

Hitchings v. Dixon · filed 1995-11-15(a)(4)

Further, the CPLR article 78 proceeding commenced by plaintiff’s predecessor in interest seeking annulment of a determination of the Village Zoning Board of Appeals (ZBA) that granted an area variance did not constitute "another action pending” under CPLR 3211 (a) (4). The Dixons, though granted permission to intervene for the purpose of taking an appeal, were not otherwise parties to the CPLR article 78 proceeding. Thus, the other action did not involve the same parties or the same cause of action.

CPLR 3211(a)(4) requires a complete identity of issues before an action may be dismissed or stayed because another action is pending.

Reliance Insurance v. American Electric Power Co. · filed 1996-02-08(a)(4)

The requisite complete identity of issues, for purposes of CPLR 3211 (a) (4), does not exist (see, Kent Dev. Co. v Liccione, 37 NY2d 899, 901).

Section 3211(a)(4) requires another pending action between the same parties on the same cause of action; related actions seeking different relief do not satisfy that requirement.

Salmat Pizza Enterprises, Inc. v. Dezzara Restaurant Corp. · filed 1996-03-26(a)(4)

In order to warrant dismissal of the proceeding pursuant to CPLR 3211 (a) (4), movant must demonstrate that another action between the same parties on the same cause of action is pending in another court. In this proceeding, petitioner seeks a money judgment for unpaid rent and a judgment of possession. Although all three actions are related to the underlying sale of a pizza business, neither the cause of action alleged in this nonpayment proceeding, nor the relief requested is the same as those set forth in either Supreme Court action. Accordingly, respondent’s motion to dismiss this proceeding on this ground is denied.