On July 28, 2023, the Fourth Department issued a decision in Matter of Witkowski v. HS 570, Inc., 2023 NY Slip Op. 04019, holding that a motion to dismiss in favor of a prior pending action should have been dismissed because of differences between the actions, explaining:
Petitioners now appeal from an order that, inter alia, dismissed the petition pursuant to CPLR 3211 (a) (4), which permits dismissal 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. We agree with petitioners that Supreme Court erred in dismissing the petition against respondents. Inasmuch as petitioners have stipulated to discontinue this proceeding against respondent Life Storage, Inc., we do not address any issues with respect to Life Storage, Inc.
In determining whether dismissal under CPLR 3211 (a) (4) is warranted, we consider (1) whether both suits arise out of the same actionable wrong or series of wrongs and (2) as a practical matter, whether there is any good reason for two actions rather than one being brought in seeking the remedy. A dismissal on such grounds is discretionary; it is never mandatory. The statute provides that the court need not dismiss upon this ground but may make such order as justice requires .In other words, the trial court has discretion to fashion a remedy that best suits the circumstances of the parties and the case.
Here, although both this proceeding and the action in Delaware sought books and records related to the corporation, petitioners in this proceeding also sought to preserve documents unrelated to the corporation, some of which dealt with potential breach of fiduciary duty claims against John Hoskins. In addition, some of petitioners’ potential allegations were not part of the Delaware action, which was commenced against only the corporation.
While complete identity of parties is not a necessity for dismissal under CPLR 3211(a)(4) there must at least be a substantial identity of parties which generally is present when at least one plaintiff and one defendant is common in each action. If the parties are not the same and even though plaintiffs seek much the same end by their actions, the subsequent action should not be dismissed.
Inasmuch as the Delaware action involves only one of the same parties as this proceeding and does not encompass all of the disputes between the parties, we conclude that the court erred in dismissing the petition.
(Internal quotations and citations omitted).