N.Y. C.P.L.R. § 3211

Section 3211(a)(4) requires substantial identity of both parties and issues before an action may be dismissed because another action is pending.

Eileen W. v. Mario A. · filed 1996-05-08(a)(4)

While the parties to the two actions are identical, the same cannot be said for the issues presented in the actions.

Section 3211(a)(4) permits a court to dismiss a cause of action in its discretion when the same cause is asserted in a pending action.

Yip v. Ip · filed 1996-07-12(a)(4)

Finally, the court properly exercised its discretion in dismissing plaintiffs remaining cause of action because it is the same as that asserted in the pending 1984 action (see, CPLR 3211 (a) (4); Whitney v Whitney, 57 NY2d 731, 732; Maier-Schule GMC v General Motors Corp., 210 AD2d 963).

Section 3211(a)(4) permits dismissal of counterclaims already raised in a related action between the parties.

In re the Dissolution of Validation Review Associates, Inc. · filed 1996-07-29(a)(4)

The Supreme Court did not improvidently exercise its discretion in dismissing the first six counterclaims of Schimel’s answer. The causes of action asserted therein have already been raised by Schimel in the related action between the parties (see, CPLR 3211 [a] [4]).

A movant seeking dismissal because another action is pending generally must show that the other action was commenced first.

Reckson Associates Realty Corp. v. Blasland, Bouck & Lee, Inc. · filed 1996-08-05(a)(4)

The general rule is that, in order to sustain a claim that another action is pending for purposes of CPLR 3211 (a) (4), the movant must establish that the other action was commenced first (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:14, at 24). An action is commenced when the summons and complaint are filed (see, CPLR 304). In the instant case, there is no dispute that the Suffolk County summons and complaint were filed first, albeit only a day before the filing of the Onondaga County summons and complaint. The court therefore did not err in refusing to dismiss the Suffolk County complaint.

Section 3211(a)(4) permits dismissal of a Surrogate’s Court proceeding when pending actions arise from the same wrongs and can provide complete relief.

In re the Estate of Aaron · filed 1996-10-17(a)(4)

Pursuant to SCPA 102, the provisions of CPLR 3211 (a) (4) are applicable to this proceeding and, therefore, Surrogate’s Court had broad jurisdiction to dismiss on the ground of the pending Supreme Court actions (see, Whitney v Whitney, 57 NY2d 731).

CPLR 3211(a)(4) permits dismissal of a second, identical action when the first action has not been dismissed.

Alcide v. Westchester County Medical Center · filed 1996-12-02(a)(4)

Contrary to the plaintiffs’ contention, their commencement of a second, identical action against the defendants pursuant tó CPLR 306-b (b) was improper, inasmuch as there is no evidence in the record that their first action had been dismissed. Accordingly, the Supreme Court acted properly in granting the defendants’ motion pursuant to CPLR 3211 (a) (4) to dismiss the second action (see, e.g., DeBerardine v Rockland Elec. Co., 137 AD2d 647, 649).

Section 3211(a)(4) gives a court discretion to make an order other than dismissal when another action is pending between the parties.

Muscianesi v. Long Island College Hospital · filed 1997-02-03(a)(4)

CPLR 3211 (a) (4) provides that in deciding whether to dismiss an action on the ground that there is another action pending between the parties, "the court need not dismiss upon this ground but may make such order as justice requires”.

When an action is already pending in another state and full relief there is uncertain, the preferred course under CPLR 3211(a)(4) is to stay the New York action pending resolution of the earlier action.

Lawler v. TropWorld Casino & Entertainment Resort · filed 1997-04-14(a)(4)

The record here demonstrates the existence of such a factual question and, consequently, the prosecution of the New York action must be stayed pending a final resolution of the prior New Jersey action.

Section 3211(e) waives an another-action-pending defense when a party had sufficient notice to raise it in an earlier motion to dismiss but failed to do so.

Brody Truck Rental, Inc. v. Country Wide Insurance · filed 1997-04-17(e)

The IAS Court correctly held that appellant waived its right ... to raise the defense that respondent’s counterclaim in the Civil Court action constitutes another action pending between these parties for the same cause of action, appellant having failed to raise this ground for dismissal in a prior motion to dismiss respondent’s cross claims (CPLR 3211 [e]; 226 AD2d 205, supra).

Section 3211(a)(4) permits a court to deny a motion to dismiss based on another action pending between the parties.

St. Paul Fire & Marine Insurance v. HMCC Associates · filed 1997-05-12(a)(4)

Finally, the Supreme Court did not improvidently exercise ... its discretion in denying the appellants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) (see, Marcus Dairy v Jacene Realty Corp., 193 AD2d 653).

A motion to dismiss under CPLR 3211(a)(4) fails when the movant does not show that the actions arise from the same actionable wrong and that the earlier action could resolve the disputed issues.

Thompson v. McCarthy · filed 1997-07-03(a)(4)

In our view, defendant has failed to demonstrate that the City Court and Supreme Court actions “arise out of the same actionable wrong” and that the City Court action should have been sufficient to resolve the disputed issues (Hinman, Straub, Pigors & Manning v Broder, 89 AD2d 278, 280; see, Whitney v Whitney, 57 NY2d 731, 732; see generally, CPLR 3211 [a] [4]).

Section 3211(a)(4) permits dismissal when another pending proceeding involves substantially the same parties and seeks the same relief for the same alleged wrong, even if the legal theories differ.

Schaller v. Vacco · filed 1997-07-10(a)(4)

We also are of the view, however, that Supreme Court did not abuse its discretion in dismissing the petition at issue here based upon the pendency of proceeding No. 1. In this regard, we note that although the precise legal theories presented in proceeding No. 1 and this proceeding differ, the pleadings in each are based upon the same actionable wrong, i.e., petitioner’s allegedly unlawful termination, and seek the same relief.

CPLR 3211(a)(4) does not require dismissal in favor of an earlier-filed action when the first filing was a tactic to secure a preferred forum.

White Light Productions, Inc. v. On The Scene Productions, Inc. · filed 1997-07-17(a)(4)

Defendants should not be rewarded for their precipitous filing, approximately a week after learning of plaintiffs’ intention to bring an action, placing venue in a distant forum. Defendants compounded the prejudice to plaintiffs by engaging in months of negotiations without serving process or informing plaintiffs that an action had been commenced.

An action commenced by summons with notice, without a complaint, is not a prior pending action under CPLR 3211(a)(4).

Wharton v. Wharton · filed 1997-11-10(a)(4)

However, although the prior action was commenced by the husband in 1990 by service of a summons with notice, he served no complaint in that action. Accordingly, the 1990 action did not constitute a prior pending action within the meaning of CPLR 3211 (a) (4) (see, Graev v Graev, 219 AD2d 535; United Enters. v Hill, 185 AD2d 206; Sotirakis v United Servs. Auto. Assn., 100 AD2d 931; Campagna, Inc. v Dune Alpin Farm Assocs., 81 AD2d 633).

Section 3211(a)(4) permits dismissal when another action will address the claims and there is substantial identity of parties and essential identity of issues.

Trump Empire State Partners v. Empire State Building Associates · filed 1997-12-18(a)(4)

The contract claims were properly dismissed because they will be addressed in other litigation (CPLR 3211 [a] [4]). Since substantial identity of parties (see, Employers Ins. v Primerica Holdings, 199 AD2d 178) and “essential” identity of issue (see, Parker v Rich, 140 AD2d 177) were demonstrated, dismissal of the agreement-based claims was a proper exercise of discretion (see, Morgulas v Yudell Realty, 161 AD2d 211, 212).

Courts have broad discretion to dismiss an action or proceeding when another is pending between the same parties on the same cause of action.

Brooklyn Union Gas Co. v. State Board of Real Property Services · filed 1998-01-22(a)(4)

Courts enjoy broad discretion when considering an application pursuant to CPLR 3211 (a) (4) to dismiss an action or proceeding on the ground that another action or proceeding is pending between the same parties on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732; see also, D’Agostino v Harding, 217 AD2d 835).

Dismissal based on another pending matter is unwarranted when that matter may be time-barred and unable to provide full relief.

Lee v. Lee · filed 1998-03-23(a)(4)

As the Surrogate’s Court has not yet determined whether Matter No. 1 was timely commenced and may ultimately find it to be time-barred, the appellant may not be able to obtain full relief in Matter No. 1. Accordingly, Matter No. 2 is reinstated pending determination of the timeliness of the petition in Matter No. 1.

CPLR 3211(a)(4) permits dismissal of claims that duplicate claims in another pending action against the same defendant.

Structure Tone, Inc. v. Burgess Steel Products Corp. · filed 1998-04-21(a)(4)

Additionally, the claims against JWP are dismissible as duplicative of those asserted in another action pending against JWP (see, CPLR 3211 [a] [4]).

Section 3211(a)(4) permits dismissal based on another pending action only if that action has not ended when the defense or claim is asserted.

Initiative for Competitive Energy v. Long Island Power Authority · filed 1998-10-07(a)(4)

CPLR 3211 (a) (4) requires dismissal where the court in which the prior action is pending retains jurisdiction and where that action was not terminated before the time at which the defense or claim in issue is asserted (7 Weinstein-Korn-Miller, NY Civ Prac 3211.20). In this instance, no basis exists to dismiss IFCE’s complaint pursuant to CPLR 3211 (a) (4) since the Nassau County companion action (Suffolk County v Long Is. Power Auth., 177 Misc 2d 208, supra) was dismissed (order and judgment, dated Mar. 24, 1998, Winick, J.) prior to commencement of this action (May 27, 1998).

Under CPLR 3211(a)(4), a court may decline to dismiss or stay a New York action despite an earlier similar action in another state when New York is the more appropriate forum.

Brooklyn Navy Yard Cogeneration Partners v. PMNC · filed 1998-10-26(a)(4)

Contrary to the appellants’ contention, the Supreme Court did not improvidently exercise its discretion in denying their ...motion to dismiss, or, in the alternative, stay the action pursuant to CPLR 3211 (a) (4) (see, Whitney v Whitney, 57 NY2d 731). Although shortly before this action was commenced against them, the defendants had instituted a similar action against the plaintiff in California, we find that under the circumstances of this case New York is the most appropriate forum for resolution of the disputes between the parties (see, White Light Prods, v On the Scene Prods., 231 AD2d 90; Flintkote v American Mut. Liab. Ins. Co., 103 AD2d 501, affd 67 NY2d 857).

Section 3211 does not bar a later suit because an earlier action is pending when the affirmative defense was never made the subject of a dismissal motion.

Clearwater Realty Co. v. Hernandez · filed 1998-12-10(a)(4), (e)

Nor is this suit barred by the pendency of the earlier action; the affirmative defense (CPLR 3211 [a] [4]) was never made the subject of a dismissal motion (CPLR 3211 [e]).

CPLR 3211(a)(4) permits dismissal when a prior proceeding seeking the same relief was pending and has since been decided on the merits.

Valdez v. Williams · filed 1998-12-31(a)(4)

Because a prior proceeding was pending for that same relief and has now been decided by this Court on the merits (Matter of Valdez v Williams, 256 AD2d 1118 [decided herewith]; see, CPLR 7804 [g]), the instant proceeding is dismissed (see, CPLR 3211 [a] [4]).

CPLR 3211(a)(4) permits dismissal of a second proceeding when an earlier pending proceeding challenges the same determination and raises the same issues.

Guzman v. Chairman · filed 1999-04-08(a)(4)

First, Supreme Court did not err in dismissing the second proceeding based upon the pendency of the first proceeding, which challenged the same administrative determination and raised the very same issues (see, CPLR 3211 [a] [4]; Matter of Schaller v Vacco, 241 AD2d 663).

CPLR 3211(a)(4) permits dismissal when another action is pending between the same parties for the same cause of action; claims against individual officers and a municipality are not substantially the same when the municipality claim requires proof of an official policy or custom.

Lopez v. Shaughnessy · filed 1999-04-19(a)(4)

The plaintiff’s cause of action pursuant to 42 USC § 1983 in the. instant action and his cause of action pursuant to 42 USC § 1983 in his action against the County are neither the same nor substantially the same. The County cannot be held liable pursuant to 42 USC § 1983 based solely upon the doctrine of respondeat superior or vicarious liability.

CPLR 3211(a)(4) permits dismissal when an earlier proceeding involves the same parties and issues and the parties agreed to resolve their dispute there.

Juron v. Minzner · filed 1999-05-24(a)(4)

Ordered that the order is reversed, on the law and the facts, with costs, the motion is granted, and the complaint is dismissed. ... The record demonstrates that there is an identity of issues and parties between this action and a corporate dissolution proceeding previously commenced in Westchester County. Moreover, the plaintiff, Albert A. Jurón, and the defendant Edward S. Minzner stipulated to have all issues regarding their respective financial interests in their former law firm resolved in the dissolution proceeding.

Section 3211(a)(4) permits dismissal when another action between the same parties for the same cause is pending in a judicial forum; an administrative proceeding is not an “action” under this provision.

Davis v. Waterside Housing Co. · filed 1999-09-24(a)(4)

CPLR 3211 (a) (4) provides that a court may dismiss a proceeding where “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.” This provision clearly indicates that the term “action” refers to a matter pending in front of a judicial forum. Furthermore, the definition of the word “action” in the CPLR does not include administrative proceedings (CPLR 103 [a]).

CPLR 3211(a)(4) gives courts broad discretion to dismiss an action when another action exists.

American Guarantee & Liability Insurance v. Xerox Corp. · filed 1999-11-15(a)(4)

This court declines to dismiss the action pursuant to CPLR 3211 (a) (4) based upon the Connecticut action. This court is empowered with broad discretion to determine whether an action should be dismissed based upon the existence of another action.

Section 3211(a)(4) permits dismissal when another proceeding involving substantially identical parties and the same issues is pending, even if different individuals are named.

Cliff v. Mayo · filed 2000-04-13(a)(4)

Although petitioner named different correction officers in each of the two proceedings (see, CPLR 3211 [a] [4]), inasmuch as the parties were substantially identical, dismissal was warranted (see, Barringer v Zgoda, 91 AD2d 811).

Under CPLR 3211(a)(4), a pending action does not justify dismissal on the theory that the parties are the same through an agency relationship unless the record establishes that relationship.

K.S. Finance Corp. v. Grand Palace Hotel at the Park, L. L. C. · filed 2000-05-18(a)(4)

The court properly rejected defendant’s claim that this action should be dismissed because of the pendency of another action, since the record does not establish a legal agency relationship between plaintiff and the named payee on the check whereby the former should be considered the “same partly]” in “another action pending” (CPLR 3211 [a] [4]).

Section 3211(a)(4) permits a court to stay a proceeding without prejudice while an earlier action resolves an issue common to both.

Eagle Insurance v. Nowaz · filed 2000-10-16(a)(4)

In light of the fact that the personal injury action was already pending in Kings County, and a hearing had been scheduled to determine the issue of whether the Micro Comp, vehicle had been stolen, the Supreme Court providently exercised its discretion in granting the petition to the extent of staying the arbitration without prejudice to the service of a new demand should the Supreme Court, Kings County, determine that the Micro Comp, vehicle was being driven without permission (see, CPLR 3211 [a] [4]; Whitney v Whitney, 57 NY2d 731).

Section 3211(a)(4) does not bar a foreclosure action merely because a related federal action is pending.

National Management Corp. v. Adolfi · filed 2000-11-02(a)(4)

The Federal action does not constitute a legal bar to the foreclosure action, either under an election of remedies theory (see, Marine Midland Bank v Lake Huntington Dev. Group, 185 AD2d 395, 396; see also, RPAPL 1301 [1]) or as a prior pending action under CPLR 3211 (a) (4) (see, White Light Prods. v On The Scene Prods., 231 AD2d 90, 93).

Section 3211(a)(4) permits dismissal when another action between the same parties for the same cause is pending; an action already dismissed does not qualify.

Kung v. Farinella · filed 2000-11-27(a)(4)

CPLR 3211 (a) (4) provides that a court may dismiss an 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.” Here, no prior action was pending.

Section 3211(a)(4) permits a court to deny dismissal or a stay despite a similar pending action when the circumstances favor resolving the dispute in New York.

Sterling Vision, Inc. v. Joel · filed 2001-01-22(a)(4)

Contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in denying their cross motion to dismiss or, in the alternative, to stay the action pursuant to CPLR 3211 (a) (4) (see, Whitney v Whitney, 57 NY2d 731). Although shortly before the commencement of this action the defendant Apryl Robinson had instituted a similar action against the plaintiff and the defendant Larry Joel in Kentucky, under the circumstances of this case, New York is the most appropriate forum for resolution of the dispute between the parties (see, White Light Prods, v On the Scene Prods., 231 AD2d 90; Flintkote Co. v American Mut. Liab. Ins. Co., 103 AD2d 501, affd 67 NY2d 857).

Section 3211(a)(4) permits a court to dismiss a duplicative action without prejudice while a related action is pending, allowing recommencement after the related issues are resolved.

Raik v. Developers · filed 2001-04-09(a)(4)

To the extent that it may later be determined that any of the plaintiff’s alleged business interests are beyond the reach of Action No. 2, as a matter of discretion in the interest of justice (see, CPLR 3211 [a] [4]), the dismissal of Action No. 1 is without prejudice to recommencement of that action after final resolution of the equitable distribution issues.

Section 3211(a)(4) permits dismissal for another pending action only when both suits arise from the same actionable wrong or series of wrongs.

Moore v. Moore · filed 2001-04-27(a)(4)

Notwithstanding that the Court finds the petitioner herein waived the obj ection/defense by failing to comply with the time limitations set forth in CPLR 3211 (e), which require the motion to dismiss to be made prior to the service of responsive pleadings, this Court finds that both suits do not arise out of the same actionable wrong or series of wrongs, and therefore are not “the same cause of action” to predicate dismissal upon CPLR 3211 (a) (4) grounds.

A stay based on another action pending under CPLR 3211(a)(4) may require reconsideration when the supposed prior action may have ended before the stay was ordered.

El Gallo Meat Market, Inc. v. Gallo Market, Inc. · filed 2001-08-16(a)(4)

We express no opinion as to whether the action pending between these parties and others in Supreme Court, Bronx County, could provide the predicate for a stay. Accordingly, we remand the matter to provide the parties and the IAS court an opportunity to revisit and reconsider this issue in light of the fact that the supposed prior action on which the stay now rests may not have been in existence at the time.

Section 3211(a)(4) does not warrant dismissal when the two actions seek different relief.

Spector v. Zuckermann · filed 2001-10-29(a)(4)

The Supreme Court improperly granted, that branch of the defendants’ motion which was to dismiss the Spector Action pursuant to CPLR 3211 (a) (4), as it did not seek the same relief as the Doctors’ Action (see, CPLR 3211 [a] [4]; Lopez v Shaughnessy, 260 AD2d 551; Proietto v Donohue, 189 AD2d 807).

Section 3211(a)(4) does not warrant dismissal when the two actions and the relief they seek are not the same or substantially the same.

Zirmak Investments, L.P. v. Miller · filed 2002-01-28(a)(4)

The two actions and the relief sought by them are not the same or substantially the same (see, Kent Dev. Co. v Liccione, 37 NY2d 899, 901). Consequently, the Supreme Court properly denied that branch of the defendant’s cross motion which sought dismissal based on CPLR 3211 (a) (4).

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

Benenson v. SKEK Associates · filed 2002-04-29(a)(4)

The relief which the plaintiffs seek in the instant action is “substantially the same” (Kent Dev. Co. v Liccione, 37 NY2d 899) as the relief which they seek in a counterclaim in another action pending between the parties. Therefore, the Supreme Court properly granted the defendant’s motion to dismiss the complaint in the instant action (see CPLR 3211 [a] [4]; cf. JC Mfg. v NPI Elec., 178 AD2d 505).

Section 3211(a)(4) permits dismissal based on another pending action when the parties and issues in the two actions are substantially identical.

Crest Shipping Agency (NY) Inc. v. Commodore Consulting Inc. · filed 2002-05-16(a)(4)

Since the parties and issues raised in this action are not substantially identical to those in the action previously commenced by defendant Carmine Ragucci in Richmond County, the IAS court properly denied defendants’ cross motion to dismiss on the ground that another action between the same parties was pending (cf., Matter of Cliff v Mayo, 271 AD2d 763).

CPLR 3211(a)(4) does not warrant dismissal based on a pending action when that action cannot provide the relief sought.

Gottlieb v. Gottlieb · filed 2002-05-28(a)(4)

Accordingly, because the relief sought in this action is not available in the pending Family Court action, the defendant’s motion to dismiss pursuant to CPLR 3211 (a) (4) should have been denied (see Phelps v Phelps, 84 AD2d 911, 912; Siegel, NY Prac § 262 [3d ed]).

Section 3211(a)(4) gives courts discretion to deny a motion to dismiss based on a prior action pending.

Polito v. Mack-Polito · filed 2002-09-09(a)(4)

Contrary to the defendant’s assertion, the Supreme Court providently exercised its discretion in denying her cross motion to dismiss the action on the ground that there was a prior action pending (see CPLR 3211 [a] [4]; Whitney v Whitney, 57 NY2d 731; Graev v Graev, 219 AD2d 535).

Section 3211(a)(4) permits a court to stay an action pending resolution of a related action to avoid conflicting decisions.

Janpol v. Reznick · filed 2002-06-03(a)(4)

To avoid conflicting resolutions of the parties’ dispute, we stay prosecution of the instant action until the issues pending before the Supreme Court, Kings County, are resolved (see CPLR 3211 [a] [4]).

Section 3211(a)(4) permits dismissal when another action is pending, but dismissal is unwarranted when the parties are not substantially identical.

Caudill v. McGreevy · filed 2002-11-07(a)(4)

Although the legal theories may be similar and are based upon some of the same actionable wrongs, the identities of AMC as a corporate employer and defendant as an individual are, obviously, not “substantially identical”; hence, dismissal of the action against defendant is unwarranted (Cliff v Mayo, 271 AD2d 763, 764; see Matter of Schaller v Vacco, 241 AD2d 663).

Section 3211(a)(4) allows dismissal or a stay based on another pending proceeding when the parties and causes of action are sufficiently identical.

National Fuel Gas Supply Corporation v. Town of Concord · filed 2002-11-15(a)(4)

Contrary to respondents’ contention, the court did not abuse its discretion in refusing to dismiss the petitions or stay the proceedings pursuant to CPLR 3211 (a) (4). Respondents failed to establish “sufficient identity as to both the parties and the causes of action asserted in the respective actions [and proceedings]” White Light Prods. v On The Scene Prods., 231 AD2d 90, 93; see generally Whitney v Whitney, 57 NY2d 731, 732).

CPLR 3211(a)(4) does not warrant dismissal when the prior action is not pending between the same parties.

Credit-Based Asset Servicing & Securitization, LLC v. Grimmer · filed 2002-11-15(a)(4)

We agree with plaintiff that defendants are not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (4) because the prior action is not “pending between the same parties” to this action {id.-, see Hitchings v Village of Sylvan Beach, 221 AD2d 926; Glatzer v Scappatura, 99 AD2d 505; see also Blank v Schafrann, 167 AD2d 745, 746; Forget v Raymer, 65 AD2d 953, 954).

CPLR 3211(a)(4) permits dismissal when a pending summary proceeding can afford full relief on the same dispute through defenses and counterclaims.

Spain v. 325 West 83rd Owners Corp. · filed 2003-02-24(a)(4)

Since the plaintiffs may obtain full redress of their rights under the proprietary lease by raising the claims asserted in this action as affirmative defenses and counterclaims in the summary proceeding, the Supreme Court properly denied their motion for removal and consolidation, and granted that branch of the cross motion which was to dismiss the action pursuant ...to CPLR 3211 (a) (4) (see Post v 120 E. End Ave. Assoc., supra; Cohen v Goldfein, 100 AD2d 795, 796-797 [1984]).

CPLR 3211(a)(4) permits dismissal when a pending cross complaint between the parties seeks substantially the same relief.

Alpert v. Alpert · filed 2003-03-10(a)(4)

The relief which the plaintiff seeks in this action is “substantially the same” ... as the relief which he seeks in a cross complaint in another action pending between the parties. Therefore, the Supreme Court properly granted the defendant’s motion to dismiss the complaint in this action (see CPLR 3211 [a] [4]; Benenson v SKEK Assoc., 293 AD2d 694 [2002]).

Section 3211(a)(4) permits dismissal of a duplicative action involving substantially the same parties, issues and underlying facts.

Josephs v. Bank of New York · filed 2003-02-27(a)(4)

Dismissal of the declaratory judgment action was also warranted by the circumstance that it was duplicative of plaintiffs embezzlement action, the two actions involving substantially the same parties, issues and underlying facts (see CPLR 3211 [a] [4]; Velez v Union Sanitorium Assn., 106 AD2d 280, 281 [1984], affd 64 NY2d 1119 [1985]).

CPLR 3211(a)(4) gives courts broad discretion to dismiss when another action between the same parties involves the same cause of action; actions based on separate theories of recovery need not be dismissed.

Haller v. Lopane · filed 2003-05-05(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 for the same cause of action (see Whitney v Whitney, 57 NY2d 731 [1982]). Here, each action is based on a separate theory of recovery. Thus, the court properly exercised its discretion in denying the motion to dismiss on this ground.

CPLR 3211(a)(4) allows dismissal based on another pending action when the actions and the relief sought are the same or substantially the same.

Casa de Cambio Delgado, Inc. v. Casa de Cambio Puebla, S.A. de C.V. · filed 2003-05-07(a)(4)

The court declines to dismiss the action pursuant to CPLR 3211 (a) (4) on the ground that there is another action pending between the parties for the same cause of action. The action filed in Mexico is limited in scope in that it seeks only to recover commissions earned by Puebla. The instant action, on the other hand, concerns the parties’ agreement as a whole and involves other causes of action based upon Puebla’s handling of, and payments from, the transmission accounts. Thus, the two actions and the relief sought by them are not the same or substantially the same (see, Zirmak Invs. v Miller, 290 AD2d 552 [2002]).

Under CPLR 3211(a)(4), filing a summons with notice without serving a complaint does not commence an action for purposes of deciding whether another action is pending, and priority in filing does not necessarily control dismissal.

San Ysidro Corp. v. Robinow · filed 2003-11-18(a)(4)

Inasmuch as the filing of a summons with notice, absent the service of the complaint, does not constitute the commencement of an action for CPLR 3211 (a) (4) purposes (Security Mut. Life Ins. Co. of N.Y. v DiPasquale, 271 AD2d 268, 269 [2000]), the California action may be deemed to have been commenced first in time. However, while such technical priority in the commencement of actions is a factor to be considered, it is not necessarily dispositive, particularly where both actions are at the earliest stages of litigation, where one forum’s connections clearly predominate and where such priority was achieved by such duplicity as occurred here.

Section 3211(a)(4) permits dismissal when another action between the parties is pending and involves the same transaction and claims.

Lee v. Stunt Sportswear USA, Inc. · filed 2003-12-16(a)(4)

However, we exercise our discretion to dismiss that action on the ground that there is another action pending between the parties, arising out of the same transaction and involving the same claims (CPLR 3211 [a] [4]).

Under CPLR 3211(a)(4), dismissal based on another pending action requires a showing that the actions involve identical parties and issues or that the other action was improperly preempted by a race to the courthouse.

Allied Properties v. 236 Cannon Realty LLC · filed 2004-01-06(a)(4)

Defendants, in seeking to dismiss this action on the ground that there is another action pending, have failed to make the requisite showing that the other action, a federal action which they commenced, was improperly preempted by a race to the courthouse, or that the actions involve identical parties and issues (see Guilden v Baldwin Sec. Corp., 189 AD2d 716 [1993]).

Section 3211(a)(4) permits dismissal of a separately commenced District Court action that duplicates a pending action and exposes the defendant to two judgments.

North Fork Bank v. Grover · filed 2004-01-23(a)(4)

In the instant District Court proceeding the plaintiff admits two separate index numbers were purchased. This indicates that plaintiff considered the actions separate and distinct and that the service of the second action was not merely reservice of the first summons. Under this scenario defendant was briefly exposed to the possible entry of two judgments. This is exactly the situation section 3211 (a) (4) was designed to prevent.

CPLR 3211(a)(4) permits dismissal when another action seeking the same recovery is pending.

Kaufman & Satran v. Sidbern Estates, Inc. · filed 2004-02-17(a)(4)

The appellants were entitled to dismissal of the complaint insofar as asserted against them since the plaintiffs application to recover the same legal fee was still pending in a New York County action (see CPLR 3211 [a] [4]).

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

Coppa v. Fabozzi · filed 2004-03-29(a)(4)

Moreover, the Supreme Court properly granted that branch of the motion which was to dismiss the counterclaim because it, too, was without merit, since another action between substantially the same parties involving the same cause of action was pending (see CPLR 3211 [a] [4]; Fabozzi v Coppa, supra).

Section 3211(a)(4) allows a court to deny dismissal despite an earlier action when dismissal would reward forum shopping and disregard an agreed forum.

Jordan Intl. Trading v. Yang · filed 2004-04-06(a)(4)

The transparent forum shopping antics of Yang, Fagelson and Hahne provide no basis for ignoring the choice of law and forum selection clauses of the agreement they signed and is no basis for an unjust and inequitable dismissal or stay of this litigation (White Light Productions, Inc. v On the Scene Productions, Inc. , 231 AD2d 90, 100).

Under CPLR 3211(a)(4), consolidation may be appropriate instead of dismissal when another action is pending.

Northpark Associates, L.P. v. Westcon, Inc. · filed 2004-06-28(a)(4)

The motion was, nevertheless, properly denied. Under the circumstances of this case, consolidation of the actions rather than dismissal of the prior pending action is appropriate (see CPLR 3211 [a] [4]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:19).

Section 3211(a)(4) permits dismissal when another action between the parties based on the same facts is pending.

Papp v. Debbane · filed 2005-03-03(a)(4)

This action, commenced while another action brought by plaintiffs against defendant based on the same facts was pending, was properly dismissed pursuant to CPLR 3211 (a) (4).

Under § 3211(a)(4), filing first is a factor in deciding whether to dismiss an action, but it does not control the decision.

Certain Underwriters at Lloyd's, London v. Hartford Accident & Indemnity Co. · filed 2005-03-08(a)(4)

While technical priority in the commencement of actions is a factor to be considered in determining whether dismissal pursuant to CPLR 3211 (a) is appropriate, it is not necessarily dispositive (see San Ysidro Corp. v Robinow, 1 AD3d 185, 186 [2003]).

Section 3211(a)(4) permits dismissal when the plaintiff has commenced a similar second action in the same court against the defendant.

Clark v. Bellovin · filed 2005-05-10(a)(4)

The action was properly dismissed for plaintiffs failure to serve a complaint after a timely demand (CPLR 3012 [b]), and because she has commenced a similar second malpractice action, in the same court, against this defendant and his firm (CPLR 3211 [a] [4]).

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

Packes v. Cendant Mortgage Corp. · filed 2005-06-06(a)(4)

Accordingly, Cendant is entitled to dismissal of the present action on the basis that “there is another action pending between [Cendant and Packes] for the same cause[s] of action” (CPLR 3211 [a] [4]).

CPLR 3211(a)(4) does not support dismissal based on earlier proceedings in which the claim would have been premature.

Lakeside Manor Home for Adults, Inc. v. Noveleo · filed 2005-08-08(a)(4)

In view of the foregoing, dismissal of the instant proceeding pursuant to CPLR 3211 (a) (4) was improper.

CPLR 3211(a)(4) gives courts discretion to retain an action despite a similar action pending elsewhere when the action has a strong connection to New York.

Continental Insurance v. Garlock Sealing Technologies, LLC · filed 2005-11-22(a)(4)

In view of this action’s strong connection to this jurisdiction, the motion court properly exercised its discretion in declining to grant that branch of defendants’ motion seeking dismissal of the action on the ground that another similar action between the parties, temporally proximate to this one, is pending in Pennsylvania (see CPLR 3211 [a] [4]; and see San Ysidro Corp. v Robinow, 1 AD3d 185, 187 [2003]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 93 [1997]).

CPLR 3211(a)(4) gives a court broad discretion to dismiss an action when another pending action involves substantially the same parties, alleged wrongs, and relief.

Feustel v. Rosenblum · filed 2005-12-12(a)(4)

Pursuant to CPLR 3211 (a) (4), a court has broad discretion as to the disposition of an action when another is pending (see Matter of Janet L., 200 AD2d 801 [1994]; Barringer v Zgoda, 91 AD2d 811 [1982]). Thus, a court may dismiss an action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties for the same cause of action (see Lopez v Shaughnessy, 260 AD2d 551 [1999]).

Section 3211(a)(4) permits dismissal when another action involving the parties is pending, but the actions must involve sufficiently similar claims.

Borden Chemical, Inc. v. Growth Products, Inc. · filed 2006-04-18(a)(4)

Nor does the pendency of the Nebraska action constitute a viable alternative ground for the relief plaintiff seeks since each action involves causes of action and damage claims which differ significantly from the other (see CPLR 3211 [a] [4]).

CPLR 3211(a)(4) permits dismissal when the same parties and causes of action are pending in two actions and create a danger of conflicting rulings, while CPLR 3211(a)(5) does not support collateral estoppel dismissal without a full and fair opportunity to litigate.

Diaz v. Philip Morris Companies · filed 2006-04-25(a)(4), (a)(5)

A motion made pursuant to CPLR 3211 (a) (4) should be granted where an identity of parties and causes of action in two simultaneously pending actions raises the danger of conflicting rulings relating to the same matter (see White Light Prods. v On The Scene Prods., 231 AD2d 90, 93-94 [1997]; see also Matter of Feustel v Rosenblum, 24 AD3d 549 [2005]; Lopez v Shaughnessy, 260 AD2d 551 [1999]). ... And, inasmuch as the plaintiffs here seek reinstatement of their complaint in Kings County only as against the defendants not named as such in the Queens County complaint, the Supreme Court’s reliance on principles of collateral estoppel as an additional or alternative basis for dismissing the complaint (see CPLR 3211 [a] [5]) was clearly misplaced. The plaintiffs were never afforded a full and fair opportunity in Queens County to litigate any issue that will be raised in the Kings County action as against Excel, Freund, and Sergi (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]).

Section 3211(a)(4) allows dismissal when another action between the same parties for the same cause is pending elsewhere, while permitting the court to make whatever order justice requires.

In re the Estate of De Maio · filed 2006-06-27(a)(4)

CPLR 3211 (a) (4) provides that a party may move for a judgment dismissing one or more causes of action 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 or the United States. The court need not dismiss upon this ground but may make such order as justice requires. ... Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the probate petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York probate proceeding was initiated by December 14, 2005. Accordingly, objectant’s application to dismiss this proceeding on the ground that there was a prior proceeding pending in Arizona is denied.

CPLR 3211(a)(4) permits dismissal based on the pendency of another action, with the first-in-time rule ordinarily considered but not necessarily dispositive.

Roberts v. 112 Duane Associates LLC · filed 2006-08-31(a)(4)

Where dismissal is sought based on the pendency of another action, the first-in-time rule would ordinarily be a factor in determining whether dismissal is appropriate, but it is not necessarily dispositive (see White Light Prods. v On The Scene Prods., 231 AD2d 90 [1997]).

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

In re the Arbitration between Perceptron, Inc. & Vogelsong · filed 2006-11-17(a)(4)

PVS failed to establish the existence of special circumstances that would warrant restraining the foreign action (cf. San Ysidro Corp. v Robinow, 1 AD3d 185, 186 [2003]). Thus, the court did not abuse its discretion in declining to interfere with the Michigan action and dismissing the petition (see generally Whitney v Whitney, 57 NY2d 731 [1982]).

Section 3211(a)(4) allows a court to dismiss an action when another action is pending between the same or similar parties seeking the same or substantially the same relief, using broad discretion.

Liebert v. TIAA-CREF · filed 2006-11-28(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 or similar parties seeking the same or substantially the same relief (see Whitney v Whitney, 57 NY2d 731 [1982]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 93 [1997]).

Section 3211(a)(4) permits dismissal when another action involving the same misconduct and essentially the same causes of action is already pending.

Lolly v. Brookdale Hospital Medical Center · filed 2007-02-06(a)(4)

Based on these representations, this action was properly dismissed pursuant to CPLR 3211 (a) (4) (see Diaz v Philip Morris Cos., Inc., 28 AD3d 703, 705 [2006]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 93-94 [1997]).

Section 3211(a)(4) permits dismissal when another action is pending and the parties and cause of action are substantially identical.

Montalvo v. Air Dock Systems · filed 2007-02-13(a)(4)

Thus, a court may dismiss an action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties for the same cause of action (see Lopez v Shaughnessy, 260 AD2d 551 [1999]).

Section 3211(a)(4) permits dismissal or a stay when another action is pending.

Town House Stock LLC v. Coby HousIng Corp. · filed 2007-01-23(a)(4)

Given this action’s connection to the prior New York litigation and plaintiffs’ claim that defendants breached the stipulation of settlement in the prior action, the motion court properly exercised its discretion in declining to grant that branch of defendants’ motion seeking dismissal or a stay pursuant to CPLR 3211 (a) (4) or CPLR 2201 (see Continental Ins. Co. v Garlock Sealing Tech., LLC, 23 AD3d 287 [2005]; San Ysidro Corp. v Robinow, 1 AD3d 185, 186 [2003]).

Section 3211(a)(4) permits dismissal when another matter is pending between the same parties involving a similar issue and gives courts broad discretion.

Mann v. Malasky · filed 2007-06-28(a)(4)

Courts enjoy broad discretion when considering whether to dismiss a claim on the ground that another matter is pending between the same parties dealing with a similar issue (see CPLR 3211 [a] [4]; Caudill v McGreevy, 299 AD2d 626 [2002]).

Section 3211(a)(4) permits dismissal when another action was commenced reasonably close in time and is more comprehensive.

Certain Underwriters at Lloyds, London v. Millennium Holdings, LLC · filed 2007-10-25(a)(4)

We reach this result regardless of whether the Ohio action can be deemed first-commenced, where the Ohio action was commenced reasonably close in time and is more comprehensive (see id.).

CPLR 3211(a)(4) gives a court broad discretion to dismiss one action when another action is pending and the parties and causes of action are substantially identical.

Simonetti v. Larson · filed 2007-10-30(a)(4)

Pursuant to CPLR 3211 (a) (4), a court has broad discretion as to the disposition of an action when another action is pending (see Whitney v Whitney; 57 NY2d 731, 732 [1982]; Matter of Janet L., 200 AD2d 801 [1994]; Barringer v Zgoda, 91 AD2d 811 [1982]), and may dismiss one of the actions where there is a substantial identity of the parties and causes of action (see Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Certain Underwriters at Lloyd’s, London v Hartford Acc. & Indem. Co., 16 AD3d 167, 168; Lopez v Shaughnessy, 260 AD2d 551 [1999]).

Section 3211(a) permits dismissal only on its specified grounds, and improper venue is addressed by transfer under article 5 rather than dismissal.

Arbor Commercial Mortgage, LLC v. Martinson · filed 2007-10-31(a)

Turning to the merits, it is clear that no basis for dismissal lies under CPLR 3211 (a). Placing venue in an allegedly improper situs is addressed in article 5, and the remedy is a transfer from one county to another within New York, not dismissal of the action. (CPLR 510, 511.) Dismissal might have been sought under CPLR 3211 (a) if another action or proceeding were pending in a North Carolina court (CPLR 3211 [a] [4]), but as noted there is no claim that such action or proceeding exists. The only valid basis raised by the defendant in support of dismissal is the doctrine of forum non conveniens, codified in CPLR 327, which is addressed below.

Section 3211(a)(4) permits a court to decline dismissal in favor of another pending action when New York's connections predominate and the proceeding can be resolved with greater ease and economy.

Fox Television Stations, Inc. v. Rainbow Broadcasting Ltd. Partnership · filed 2007-11-15(a)(4)

The court properly exercised its discretion in declining to dismiss this proceeding in favor of the parties’ pending Florida action (see San Ysidro Corp. v Robinow, 1 AD3d 185, 186-187 [2003]).

Section 3211(a)(4) permits a court to deny dismissal based on a similar action pending in another state when the New York action has a substantial connection to New York.

Travelers Casualty and Surety Co. v. Honeywell International Inc. · filed 2008-02-05(a)(4)

In view of this action’s connection to New York, that branch of Honeywell’s motion for dismissal on the ground that a similar action is pending in New Jersey was properly denied (see CPLR 3211 [a] [4]; San Ysidro Corp. v Robinow, 1 AD3d 185, 187 [2003]).

Section 3211(a)(4) gives courts broad discretion to dismiss an action when another pending action has substantially identical parties and causes of action.

Nakazawa v. Horowitz · filed 2008-04-22(a)(4)

Pursuant to CPLR 3211 (a) (4), a court has broad discretion as to the disposition of an action when another action is pending (see Whitney v Whitney, 57 NY2d 731, 732 [1982]) and may dismiss one of the actions where there is a substantial identity of the parties and causes of action (see Montalvo v Air Dock Sys., 37 AD3d 567 [2007]).

Section 3211(a)(4) does not require dismissal of a later action when defenses in the earlier action cannot provide full affirmative relief.

Viafax Corp. v. Citicorp Leasing, Inc. · filed 2008-09-16(a)(4)

However, contrary to the court’s conclusion, Viafax and the guarantors cannot obtain full redress of their rights in the first action because the pending affirmative defenses merely challenge Citicorp’s right to recover a deficiency in the amount claimed, and do not entitle Viafax and the guarantors to affirmative relief ... Accordingly, that branch of Citicorp’s motion which was to dismiss the complaint in the second action pursuant to CPLR 3211 (a) (4) should have been denied.

Section 3211(a)(4) gives a court discretion to make the order justice requires when another proceeding is pending; dismissal is not mandatory.

Posada v. New York State Department of Health · filed 2008-09-18(a)(4)

As such, we do not find it to be a proper ground for dismissing the instant petition. In any event, CPLR 3211 (a) (4) does not mandate dismissal, but rather empowers a court to make any such order as justice requires.

Section 3211(a)(4) permits dismissal when another action between the same parties involves the same cause, but leaves the court discretion to order consolidation instead.

Gosse v. Saint Peter's Hospital · filed 2009-02-11(a)(4)

However, where two identical actions are pending, CPLR 3211 (a) (4) does not mandate dismissal, but rather ... allows the court to “make such order as justice requires.”

CPLR 3211(a)(4) does not permit dismissal based on another proceeding when the parties are not the same.

Winters v. Dowdall · filed 2009-06-30(a)(4)

Further, the Dowdall defendants cannot seek dismissal under CPLR 3211 (a) (4) as none of the parties to this action are the same parties to the AEG bankruptcy proceeding (see Allied Props, v 236 Cannon Realty, 3 AD3d 318, 319 [2004]).

Section 3211(a)(4) permits a court to stay an action pending the outcome of a related federal action.

Britt v. Buffalo Municipal Housing Authority · filed 2009-06-05(a)(4)

Memorandum: Supreme Court providently exercised its discretion in granting the alternative relief sought by defendants in their respective CPLR 3211 (a) (4) motions, i.e., to stay the action pending the outcome of a related federal action (see CPLR 2201; see generally Asher v Abbott Labs., 307 AD2d 211 [2003]).

A complaint is not duplicative under CPLR 3211(a)(4) when it seeks relief that is not substantially the same as the relief sought in another proceeding.

Wharry v. Lindenhurst Union Free School District · filed 2009-09-08(a)(4)

The complaint in matter No. 1 could not be dismissed pursuant to CPLR 3211 (a) (4) as duplicative of the petition in matter No. 2, as the relief sought by the complaint and the petition was not substantially the same (cf. Simonetti v Larson, 44 AD3d 1028 [2007]).

CPLR 3211(a)(4) permits dismissal when another pending action has substantially identical parties and causes of action.

Cherico v. Midollo · filed 2009-11-04(a)(4)

A court may dismiss an action pursuant to CPLR 3211 (a) (4) where there is a substantial identity of the parties and causes of action (see Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Certain Underwriters at Lloyd’s, London v Hartford Acc. & Indem. Co., 16 AD3d 167 [2005]; Lopez v Shaughnessy, 260 AD2d 551 [1999]; Proietto v Donohue, 189 AD2d 807 [1993]).

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

Chang v. Zapson · filed 2009-11-05(a)(4)

Dismissal was also appropriate because there was another action pending between these parties involving the same causes of action (CPLR 3211 [a] [4]).

CPLR 3211(a)(4) permits dismissal of a duplicate action but does not bar commencing a second action while the first remains pending.

Jespersen v. Liang · filed 2009-12-01(a)(4)

In addition, while a “duplicate” action is subject to dismissal pursuant to CPLR 3211 (a) (4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

CPLR 3211 (a) (4) gives courts discretion when the same claim is pending in another action, including discretion to dismiss the earlier action instead of the later one.

Mercado v. City of New York · filed 2009-12-01(a)(4)

“[W]hen 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)” (Great W. Bank v Terio, 200 AD2d 608, 609 [1994], citing Dunn v Dunn, 86 AD2d 772 [1982]; see Siegel, Supplementary Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3211:18).

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

Jacobs v. Mostow · filed 2010-01-05(a)(4)

The Supreme Court properly granted the District’s motion to dismiss the complaint insofar as asserted against it because “there is another action pending between the same parties for the same cause of action” (CPLR 3211 [a] [4]).

An another-action-pending defense under CPLR 3211(a)(4) requires the two actions to seek substantially the same relief.

Ramsey v. Ramsey · filed 2010-01-19(a)(4)

The defendant’s sixth affirmative defense of “another action pending” (CPLR 3211 [a] [4]) required a showing that the relief sought in the Supreme Court partition action and in the Surrogate’s Court probate proceeding was “substantially the same” (Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; see Alpert v Alpert, 303 AD2d 433 [2003]; Benenson v SKEK Assoc., 293 AD2d 694, 695 [2002]).

Section 3211(a)(4) permits dismissal based on an earlier pending action only when that action is based on the same actionable wrong.

McFadden v. Sassower · filed 2010-02-23(a)(4)

Tenant has argued that this proceeding must be dismissed pursuant to CPLR 3211 (a) (4) because several summary proceedings were commenced against her many years earlier and remained pending. To warrant dismissal on this ground, the earlier proceedings must have been based on the same actionable wrong as the instant proceeding (see JC Mfg. v NPI Elec., 178 AD2d 505 [1991]; Pagano v Cohen, 190 Misc 2d 308 [App Term, 2d & 11th Jud Dists 2001]). As the instant holdover proceeding is based upon tenant’s failure to vacate the subject apartment pursuant to a notice of termination served in 2007, it is impossible for the proceedings that were commenced in 1987, 1988 or 1989 to have been based on the same actionable wrong.

CPLR 3211(a)(4) permits dismissal of an equitable action when a pending Civil Court proceeding can provide complete relief and no special circumstances or novel issues require Supreme Court involvement.

Brecker v. 295 Central Park West, Inc. · filed 2010-03-25(a)(4)

Absent a showing of special circumstances or novel issues requiring Supreme Court involvement, the court should not have conditioned dismissal on full discovery in Civil Court, and should simply have dismissed the equitable action under CPLR 3211 (a) (4) (see 44-46 W. 65th Apt. Corp., 3 AD3d 440 [2004], supra; Cox, 217 AD2d 179 [1995], supra).

Section 3211(a)(4) permits dismissal when an earlier action in another state involves substantially the same parties and causes of action.

Nype v. Las Vegas Land Partners LLC · filed 2010-06-08(a)(4)

The IAS court providently exercised its discretion in granting defendants’ motion to dismiss plaintiffs’ New York action based on a previously-filed Nevada action involving substantially the same parties and the same causes of action (see CPLR 3211 [a] [4]).

A court has discretion to allow a later action to proceed despite an earlier pending action involving the same parties and similar issues, even when the claims could be pursued in the earlier action.

O'Connor v. Demarest · filed 2010-06-10(a)(4)

We consider first defendant Timothy M. Demarest’s contention that the 2008 action should have been dismissed pursuant to CPLR 3211 (a) (4) upon the ground that there was another action involving the underlying circumstances already pending between the parties. ... While plaintiff could have pursued his current claims within the context of a reopened and amended 2005 action, we are unpersuaded that Supreme Court abused its discretion in permitting the claims to instead be asserted in the 2008 action.

Under CPLR 3211(a)(4), a court may dismiss an action when another pending action involving the same parties will resolve the disputes, including those concerning a remaining defendant.

Wynit, Inc. v. Smartparts, Inc. · filed 2010-06-11(a)(4)

Thus, the court did not abuse its discretion in dismissing the action sua sponte against defendant Smartparts, Inc., the remaining defendant, inasmuch as the Pennsylvania action will be dispositive with respect to that defendant as well.

Section 3211(a)(4) does not warrant dismissal when the other action is no longer pending.

Da Silva v. Gold · filed 2010-10-26(a)(4)

In view of such disposition of Da Silva’s Civil Court motion, the Civil Court action is no longer pending, and dismissal of the petition pursuant to CPLR 3211 (a) (4) is denied.

Section 3211(a)(4) does not require dismissal of a separate action between the same parties when it seeks different relief.

A.C. v. D.R. · filed 2011-01-18(a)(4)

Instead, the wife may assert an independent cause of action in a separate suit (action No. 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR 3211 [a] [4]), as long as the relief requested is different from that requested in action No. 1 (see Bofinger v Bofinger, supra).

The pendency of one spouse’s divorce action does not, by itself, require dismissal of the other spouse’s action on different grounds.

Heinz v. Heinz · filed 2011-02-16(a)(4)

Thus, because the pendency of an action by one spouse does not, by itself, bar an action by the other spouse on a different ground or grounds, the wife’s motion to dismiss is denied.

Section 3211(a)(4) gives courts broad discretion to dismiss an action when another action between the same parties can resolve substantially the same issues.

Rossignol v. Rossignol · filed 2011-03-03(a)(4)

Given the availability of complete relief pursuant to Domestic Relations Law § 234 and our public policy of resolving equitable distribution within the context of a divorce action (see O’Connell v Corcoran, 1 NY3d 179, 185 [2003]; St. John v St. John, 201 AD2d 552, 552-553 [1994]; Karasik v Karasik, 172 AD2d 294, 294 [1991]), we conclude that dismissal of the second action was within Supreme Court’s broad discretion pursuant to CPLR 3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Mann v Malasky, 41 AD3d 1136, 1137-1138 [2007]; Matter of Aaron, 232 AD2d 758, 759-760 [1996]).

CPLR 3211 (a) (4) permits dismissal when another proceeding is pending, without prejudice to seeking to amend the petition in that proceeding.

Yan Ping Xu v. City of New York · filed 2011-03-17(a)(4)

Nevertheless, dismissal of the subject action is warranted pursuant to CPLR 3211 (a) (4), because of the pending proceeding, without prejudice to plaintiff moving to amend her petition.

Section 3211(a)(4) does not warrant dismissal based on another pending action when the actions lack substantially the same parties or causes of action.

Jin Sheng He v. Sing Huei Chang · filed 2011-04-12(a)(4)

The Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4), since this action and the pending action did not have substantially the same parties or causes of action (see Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035, 1036 [2009]; Fischer v RWSP Realty, LLC, 53 AD3d 594, 594 [2008]; Simonetti v Larson, 44 AD3d 1028, 1028-1029 [2007]).

CPLR 3211(a)(4) permits a court to stay an action when a substantially overlapping action elsewhere will resolve its claims; filing first does not control the decision.

AIG Financial Products Corp. v. Penncara Energy, LLC · filed 2011-04-14(a)(4)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 6, 2009, which granted defendant’s motion to dismiss the action pursuant to CPLR 3211 (a) (4) to the extent of staying the action pending the resolution of the parties’ Pennsylvania action, and denied as moot plaintiffs cross motion for summary judgment, unanimously affirmed, with costs. ... The record establishes that there is a substantial identity of the parties and claims in the two actions and the Pennsylvania action will necessarily resolve the sole cause of action asserted in this action.

Section 3211(a)(4) permits discretionary dismissal when another pending action arises from the same subject matter or alleged wrongs, involves substantially identical parties and similar claims, and can fully resolve the plaintiff’s claims.

DAIJ, Inc. v. Roth · filed 2011-06-21(a)(4)

This action and an action pending in the Civil Court of the City of New York both arise from the same subject matter and alleged wrongs, and involve substantial identity of the parties and similarity of claims. The plaintiff’s claims may be fully litigated in the Civil Court action.

Section 3211(a)(4) gives courts broad discretion to dismiss an action when another action is pending.

Morgan Barrington Financial Services, Inc. v. Nahzi · filed 2011-06-28(a)(4)

Pursuant to CPLR 3211 (a) (4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Liebert v TIAA-CREF, 34 AD3d 756 [2006]).

Section 3211 (a) (4) permits dismissal of counterclaims when an existing action between the parties seeks essentially the same relief.

L.L. v. B.H. · filed 2011-09-06(a)(4)

It is the court’s view that dismissal of the counterclaims is warranted, pursuant to CPLR 3211 (a) (4), because there is already an action pending between the parties that seeks, in essence, the same relief.

Section 3211(a)(4) permits a stay while an earlier related action resolves issues that may determine whether the later action can succeed.

Rhinebeck Savings Bank v. Putnam County Temple & Jewish Center, Inc. · filed 2011-09-27(a)(4)

Accordingly, the foreclosure action must be stayed pending resolution of the companion ... action (see CPLR 3211 [a] [4]; Wargo v Jean, 77 AD3d 919, 921 [2010] ; National Mgt. Corp. v Adolfi, 277 AD2d 553, 555 [2000]).

CPLR 3211(a)(4) permits dismissal based on a prior pending action when that action seeks the same or substantially the same relief.

Goldman v. A&E Club Properties, LLC · filed 2011-11-01(a)(4)

In support of that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4), the defendants failed to demonstrate that the relief sought in an alleged prior pending action was the same or substantially the same such that dismissal of this action was appropriate (see CPLR 3211 [a] [4]; Kent Dev. Co. v Liccione, 37 NY2d 899 [1975]; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 790 [2011]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035 [2009]; cf. DAIJ, Inc. v Roth, 85 AD3d 959 [2011]; Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622 [2009]).

Consolidation of related proceedings can render a motion to dismiss under CPLR 3211(a)(4) moot.

Murphy v. 317-319 Second Realty LLC · filed 2012-05-03(a)(4)

Removal to Supreme Court to determine all issues, including the request for a declaratory judgment, renders moot the motion to dismiss that claim pursuant to CPLR 3211 (a) (4).

A pending proceeding to fix an attorney’s charging lien does not bar a separate quantum meruit action under CPLR 3211(a)(4).

Balestriere PLLC v. BanxCorp · filed 2012-06-12(a)(4)

The court correctly declined to dismiss the complaint pursuant to CPLR 3211 (a) (4), because “[t]he three remedies of an attorney discharged without cause — the retaining lien, the charging lien, and the plenary action in quantum meruit — are not exclusive but cumulative” (see Levy v Laing, 43 AD3d 713, 715 [2007]), and the attorney “does not waive her right to commence an immediate plenary action for a judgment against her client by commencing a proceeding to fix the amount of her charging lien” (Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 219 [1997]).

CPLR 3211(a)(4) permits a court to deny dismissal based on another pending action when the actions do not have substantially the same parties.

A.F. Rockland Plumbing Supply Corp. v. Hudson Shore Associated Ltd. Partnership · filed 2012-06-20(a)(4)

Here, the Supreme Court providently exercised its discretion in denying that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4), since, among other reasons, this action and the Civil Court action did not have substantially the same parties (see CPLR 3211 [a] [4]; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 790 [2011]).

A party seeking dismissal because another action is pending must show that the relief sought in the two actions is substantially the same.

Cudar v. O'Shea · filed 2012-06-28(a)(4)

Occupants also failed to establish that the petition should be dismissed based on the doctrine of prior proceeding pending (CPLR 3211 [a] [4]), as they did not submit a copy of the pleadings from the previously commenced Supreme Court action to demonstrate that the nature of the relief sought in the Supreme Court action is substantially the same as that sought here (Kent Dev. Co. v Liccione, 37 NY2d 899 [1975]; Security Tit. & Guar. Co. v Wolfe, 56 AD2d 745 [1997]).

A prior action does not warrant dismissal under section 3211(a)(4) when the two complaints allege different causes of action.

Rinzler v. Rinzler · filed 2012-07-12(a)(4)

First, because we do not agree that the complaint in the instant action alleges the same cause of action as the complaint in the first action, we find that this action should not have been dismissed pursuant to CPLR 3211 (a) (4) (see generally Graev v Graev, 219 AD2d 535, 535 [1995]).

An objection based on another pending proceeding is not properly before an appellate court when the party did not move to dismiss on that ground.

GIANGAULANO, NICHOLAS, MTR. OF · filed 2012-10-05(e)

Those contentions are not properly before us because respondents did not move for dismissal on the ground that another proceeding was pending in Surrogate’s Court (see CPLR 3211 [a] [4]; 3211 [e]), and there is no indication that petitioners have asked for the relief to which respondents claim petitioners are not entitled (see Murad v Russo, 74 AD3d 1823, 1824, lv dismissed 16 NY3d 732).

A party that does not move to dismiss under section 3211(a)(4) because another proceeding is pending cannot raise that dismissal argument on appeal.

In re the Arbitration between Giangualano & Birnbaum · filed 2012-10-05(a)(4); (e)

Those contentions are not properly before us because respondents did not move for dismissal on the ground that another proceeding was pending in Surrogate’s Court (see CPLR 3211 [a] [4]; [e]), and there is no indication that petitioners have asked for the relief to which respondents claim petitioners are not entitled (see Murad v Russo, 74 AD3d 1823, 1824 [2010], lv dismissed 16 NY3d 732 [2011]).

Section 3211(a)(4) permits dismissal when a pending proceeding seeks substantially the same relief, arises from the same alleged wrongdoing, and involves substantially the same parties.

In re Willnus · filed 2012-12-19(a)(4)

Here, the Surrogate’s Court providently exercised its discretion in granting that branch of the motion of the respondents Thomas Maguire and Steven Maguire (hereinafter together the respondents) which was to dismiss the petition pursuant to CPLR 3211 (a) (4). The relief sought by the petitioners in this Surrogate’s Court proceeding and a pending guardianship proceeding they had previously commenced in the Supreme Court was substantially the same, namely, a return of the decedent’s assets to a family trust, of which the petitioners were residuary beneficiaries (see Simonetti v Larson, 44 AD3d at 1029). In addition, both proceedings arose out of the same allegations of wrongdoing on the part of the respondents in handling the decedent’s financial affairs, and there was substantial identity of parties in each proceeding.

Section 3211 permits dismissal of a request for relief duplicative of relief sought in a prior proceeding.

Signature Health Center, LLC v. New York State Office of Medicaid Inspector General · filed 2012-12-26(a)(4), (a)(5)

The Supreme Court properly, in effect, dismissed so much of the proceeding ... as duplicative of the relief sought in the prior proceeding (see CPLR 3211 [a] [4], [5]).

Section 3211(a)(4) gives a court discretion to decline dismissal or a stay despite a prior pending action.

Aon Risk Services v. Cusack · filed 2013-01-10(a)(4)

The court properly exercised its discretion in declining to dismiss or stay this action in light of a prior pending action, commenced by Arkley and his new employer Alliant in California against Aon, seeking primarily a declaration that restrictive covenants in Arkley’s employment agreement, and certain incentive agreements he entered into with Aon, were unenforceable under California law and public policy (see generally CPLR 3211 [a] [4]).

The filing date of a parallel action is a factor in deciding a motion to dismiss under section 3211(a)(4), but it is not dispositive.

In re NYSE Euronext Shareholders/ICE Litigation · filed 2013-03-01(a)(4)

Contrary to defendants’ assertions, the forum in which the litigation was first commenced is not the dispositive factor in deciding whether to grant a motion under CPLR 3211 (a) (4).

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

Commissioner of Transportation v. Sunny Lumber Supply NY, Inc. · filed 2013-05-30(a)(4)

Notably, CPLR 3211 (a) (4) permits, but does not require, dismissal when there is a pending action between the same parties for the same cause of action in another court.

Section 3211(a)(4) permits dismissal of a later action involving substantially similar parties and the same underlying events, even when the actions assert different legal theories.

Syncora Guarantee Inc. v. J.P. Morgan Securities · filed 2013-08-13(a)(4)

Here, both actions arise out of the same transaction, involve the same allegations concerning Bear Stearns’s and EMC’s concerted actions in the “mortgage-loan securitization chain” and seek the same recovery for the same alleged injuries — that is, recovery of “claims payments made and to be made” under the policy. Thus, dismissal is also warranted under CPLR 3211 (a) (4).

CPLR 3211(a)(4) gives courts broad discretion to dismiss an action when another pending action involves substantially the same parties, subject matter, and relief.

Scottsdale Insurance v. Indemnity Insurance · filed 2013-10-09(a)(4)

Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211 (a) (4) on the ground that there is another action pending (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; Montalvo v Air Dock Sys., 37 AD3d 567 [2007]; Liebert v TIAA-CREF, 34 AD3d 756 [2006]).

A separately filed action cannot be treated as an amended pleading of an earlier action, but may be dismissed under CPLR 3211(a)(4).

Wells v. Town of Lenox · filed 2013-10-17(a)(4)

Although the characterization of action No. 2 as an amended pleading of action No. 1 does not appear appropriate since it was a separate action commenced under a separate index number, nonetheless dismissal is appropriate under CPLR 3211 (a) (4), which was a ground argued by defendants for dismissal before Supreme Court and on appeal.

Section 3211(a)(4) does not warrant dismissal based on another pending proceeding between the same parties when the relief sought is unrelated.

Gonzalez v. Kwik Realty LLC · filed 2013-11-08(a)(4)

None of the relief sought in the instant proceeding is related to the aforementioned claims in the proceeding under index No. 1548/13, and the respondent owners’ motion for dismissal pursuant to CPLR 3211 (a) (4) is without merit.

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

Friedman v. 16 Madison Square Housing Corp. · filed 2014-01-28(a)(4)

The motion court correctly dismissed the complaint because “there is another action pending between the same parties for the same cause of action” in Supreme Court (CPLR 3211 [a] [4]).

CPLR 3211(a)(4) does not support a prior-proceeding-pending defense when the two proceedings seek different relief.

St. Catherine of Sienna Roman Catholic Church v. 118 Convent Associates, LLC · filed 2014-04-16(a)(4)

Since the relief sought in both proceedings is not the same, there was no basis for a CPLR 3211 (a) (4) defense.

Section 3211(a)(4) does not warrant dismissal when no other action between the same parties on the same cause of action is pending.

Cortlandt Street Recovery Corp. v. Hellas Telecommunications · filed 2014-09-16(a)(4)

First, defendants argue that this action should be dismissed, pursuant to CPLR 3211 (a) (4), on the ground that Cortlandt 1 is an action pending between the same parties for the same cause of action. ... Thus, there is not in fact another action pending between the parties on the same cause of action. ... The court nevertheless declines to dismiss the CPLR 3213 action because it is the only action by a party with standing (WTC) which pleads the express breach of contract cause of action, and because the action is meritorious.

Section 3211(a)(4) does not support dismissal based on another pending action when the parties, causes of action, and relief sought differ.

RED BARN COUNTRY, INC. v. TROMBLEY, LINDA · filed 2014-09-26(a)(4)

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.

Under CPLR 3211(a)(4), a movant seeking dismissal because another action is pending must establish that the other action was commenced first.

Rajpurohit v. Rajpurohit · filed 2014-11-12(a)(4)

Pursuant to CPLR 3211 (a) (4), “in order to sustain a claim that another action is pending . . . the movant must establish that the other action was commenced first” (Reckson Assoc. Realty Corp. v Blasland, Bouck & Lee, 230 AD2d 723, 725 [1996]). Here, the defendant did not annex any documentation to substantiate his claim that there is a divorce action pending in India that the plaintiff commenced prior to the commencement of this action.

Section 3211(a)(4) does not warrant dismissal when the actions arise from different alleged wrongs and seek substantially different relief.

Jadron v. 10 Leonard Street, LLC · filed 2015-01-28(a)(4)

Here, the personal injury action and the instant action do not arise out of the same subject matter or series of alleged wrongs, and do not seek the same or substantially similar relief.

A dismissal under subsection (a)(4) for another pending action is not a judgment on the merits and has no claim preclusive effect.

Xu v. City of New York · filed 2015-04-29(a)(4)

However, such a dismissal is not a judgment on the merits, see David D. Siegel, N.Y. Prac. § 325 (5th ed.), Note 3 & n.14, and therefore lacks claim preclusive effect, see Applied Card Sys., 11 N.Y.3d at 122.

CPLR 3211 (a) (4) permits a court to dismiss a new action when an appeal in a prior action between the same parties for the same cause remains pending.

Malay v. City of Syracuse · filed 2015-05-14(a)(4)

In such a situation, the new action would be subject to dismissal pursuant to CPLR 3211 (a) (4), which allows for dismissal in the court’s discretion when “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.”

Section 3211(a)(4) does not warrant dismissal for a prior foreclosure action that was effectively abandoned and to which the plaintiff was not a party.

Old Republic National Title Insurance v. Conlin · filed 2015-06-10(a)(4)

Furthermore, since the prior foreclosure action was commenced by the former mortgagee, and the plaintiff was not a party to that action, which was effectively abandoned approximately four years before the mortgage and note were assigned to the plaintiff, dismissal of the complaint was not warranted pursuant to CPLR 3211 (a) (4) on the ground that a prior action was “pending between the same parties” (see Credit-Based Asset Servicing & Securitization v Grimmer, 299 AD2d at 887).

Section 3211(a)(4) permits a court to dismiss a claim in favor of a pending assignment proceeding despite different legal theories and incomplete overlap of parties.

Silver v. Whitney Partners LLC · filed 2015-07-14(a)(4)

The motion court properly exercised its discretion in determining that plaintiff’s claims against defendant Whitney Group LLC should be adjudicated in the pending assignment proceeding, rather than in a plenary action (see Hynes v Alexander, 2 App Div 109, 111 [2d Dept 1896]), despite the different legal theories of the claims and the lack of complete identity of the parties (see Shah v RBC Capital Mkts. LLC, 115 AD3d 444, 444-445 [1st Dept 2014]; Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 95-96 [1st Dept 2013]).

CPLR 3211(a)(4) permits dismissal when another action concerning the same subject matter is pending.

Aurora Loan Services, LLC v. Reid · filed 2015-10-21(a)(4)

Here, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendant Vincent G. Reid which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (4), since it is undisputed that there was a pending foreclosure action on the same mortgage commenced by the plaintiff’s predecessor-in-interest.

Section 3211(a)(4) allows a court to stay an action instead of dismissing it when another action is pending.

Wells Fargo Bank, N.A. v. Pena · filed 2016-01-06(a)(4)

While the court finds that CPLR 3211 (a) (4) applies to this action, it need not dismiss an action pursuant to this section, but may, instead, grant a stay.

CPLR 3211(a)(4) gives the court discretion to deny dismissal when the relief sought in another pending action is not the same or substantially the same.

Anonymous v. Anonymous · filed 2016-02-11(a)(4)

The court providently exercised its broad discretion in denying defendant’s motion to dismiss the breach of contract cause of action pursuant to CPLR 3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731 [1982]), since the relief sought under that claim is not the same or substantially the same relief as that sought in the divorce action (see Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]; Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 95-96 [1st Dept 2013]).

Under CPLR 3211(a)(4), dismissal because another action is pending requires substantial, but not complete, identity of parties.

PK Restaurant, LLC v. Lifshutz · filed 2016-04-05(a)(4)

The court providently exercised its discretion in dismissing the first (breach of contract), second (constructive eviction), and seventh (declaratory judgment) causes of action as against the Associates defendants pursuant to CPLR 3211 (a) (4) (other action pending). While Steensen is not a party to the other action, there is still a substantial identity of parties; complete identity is not required (Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 96 [1st Dept 2013]).

CPLR 3211(a)(4) gives courts discretion to deny dismissal when two pending actions are not sufficiently similar and seek distinct relief.

Mazzei v. Kyriacou · filed 2016-05-11(a)(4)

Here, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (a) (4) to dismiss the answer with counterclaim, on the ground that it raised issues duplicative of U.S. Bank’s foreclosure action, since the two actions were not sufficiently similar and sought distinct relief (see generally Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 790 [2011]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035, 1036-1037 [2009]; Lopez v Shaughnessy, 260 AD2d 551, 552 [1999]).

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

CELLINO & BARNES, P.C. v. LAW OFFICE OF CHRISTOPHER J. CASSAR · filed 2016-06-17(a)(4)

We reject defendants’ further contention in appeal No. 1 that the court abused its discretion in denying their motion to dismiss the first cause of action pursuant to CPLR 3211 (a) (4). That provision “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” (Whitney v Whitney, 57 NY2d 731, 732).

Under CPLR 3211(a)(4), service of process determines which competing action first took jurisdiction, but the first-in-time rule is discretionary and does not control the outcome.

GE Oil & Gas, Inc. v. Turbine Generation Services, L.L.C. · filed 2016-06-23(a)(4)

With respect to CPLR 3211 (a) (4), as the service of process in the New York action preceded the service of process in the Louisiana action, the New York court was the first to take jurisdiction over this matter (see Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 95 [1st Dept 2013]). While the application of the first-in-time rule is discretionary and not controlling, especially where, as here, the competing actions were commenced within a short time (see White Light Prods. v On The Scene Prods., 231 AD2d 90, 99 [1st Dept 1997]), there is another factor that weighs heavily in favor of maintaining jurisdiction in New York: the New York action is based solely on the loan documents, while the pending Louisiana action includes claims related to the purported joint venture (see id. at 94).

CPLR 3211(a)(4) does not require outright dismissal of a declaratory judgment action merely because a pending action has similar issues and parties with aligned interests.

Liberty Surplus Insurance Corp. v. Harleysville Ins. Co. of N.Y. · filed 2016-06-28(a)(4)

While we recognize that there are similar issues, and parties with aligned interests, in this and the third party action pending in Supreme Court, Kings County, entitled ... (index No. 12254/13), we disagree that this declaratory judgment action should be dismissed outright pursuant to CPLR 3211 (a) (4).

CPLR 3211 does not provide for dismissal when there is no pending action to dismiss.

Frates v. Frates · filed 2016-08-17

Although the defendant recited that this branch of her motion was made pursuant to CPLR 3211 and 3126, there is no pending action to be dismissed pursuant to CPLR 3211 or 3126.

Section 3211(a)(4) permits discretionary dismissal when another action between the same parties is pending, but dismissal is improper if the plaintiff has withdrawn from that action.

Donohue v. 90 N. 5th St., LLC · filed 2016-09-07(a)(4)

The pendency of another action between the same parties may be a proper basis for dismissal ( see CPLR 3211 [a] [4]; see also Whitney v Whitney , 57 NY2d 731 [1982]; Aurora Loan Servs., LLC v Reid , 132 AD3d 788 [2015]). ... Since that withdrawal had the effect of reserving to plaintiff the right to proceed against defendant ( see Spatz v Wide World Travel Serv. , 80 AD2d 519, 591-520 [1981]), we conclude that the Civil Court's dismissal of the action constituted an improvident exercise of discretion.

Section 3211(a)(4) permits a court to consolidate related actions rather than dismiss a later action when they share questions of law or fact.

MLF3 Airitan LLC v. 2338 Second Avenue Mazal LLC · filed 2016-10-04(a)(4)

Also, even where the actions are, as here, not “between the same parties for the same cause of action” if the “actions involve common questions of law or fact the actions should [be] consolidated” pursuant to CPLR 602 rather than dismissed pursuant to CPLR 3211 (a) (4).

Section 3211(a)(4) permits dismissal when another action has substantially the same parties and causes of action.

Seneca Specialty Insurance Co. v. T.B.D. Capital, LLC · filed 2016-10-26(a)(4)

Here, there is substantial identity of the parties and the causes of action alleged in the Indiana action and this action (see Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622 [2009]; White Light Prods. v On The Scene Prods., 231 AD2d 90, 94 [1997]).

CPLR 3211(a)(4) permits dismissal of a declaratory judgment claim when an earlier action between the parties involves the same cause of action.

Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc. · filed 2016-10-27(a)(4)

The court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against defendant CVR Energy, Inc., since there is another action pending between the parties for the same cause of action (CPLR 3211 [a] [4]; see Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 95 [1st Dept 2013]).