On November 13, 2025, the First Department issued a decision in 417 N. Comanche St., LLC v. EMRES II Tex., LLC, 2025 NY Slip Op. 06245, holding that dismissal in favor o a prior pending action was proper despite differing damages theories, explaining:
The motion court properly exercised its discretion in dismissing the complaint on the ground of another action pending. In considering dismissal pursuant to CPLR 3211(a)(4), courts evaluate: (1) whether there is sufficient identity of the parties; (2) whether both actions arise out of the same transaction, and whether the factual allegations are sufficiently similar; and (3) whether the same recovery is sought. Courts weigh these factors while also considering the interests of judicial economy and comity and the avoidance of inconsistent judgments. New York courts generally follow the so-called first-in-time rule, which provides the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere. However, determining the priority of pending actions by dates of filing is a general rule that should not be applied in a mechanical way.
In weighing the relevant factors here, there is sufficient identity of the parties, and sufficiently similar factual allegations. Plaintiff and EMRES are named parties and adversaries of each other in this action and the relevant Texas action. The fact that there are additional defendants besides EMRES in this action does not preclude dismissal under CPLR 3211(a)(4) where the parties are affiliated with each other and the other elements of CPLR 3211(a)(4) are present.
As to the claims, 417 Comanche’s wrongful injunction counterclaim in the Texas action and the tortious interference with contract claim in this action arise from the same series of alleged wrongs. 417 Comanche argues that the recovery sought in the two actions is dissimilar, in that the damages alleged in this action exceed those it could recover in the Texas action, where it is limited to recovery on the bond. However, except for conclusory statements about not being able to obtain personal jurisdiction in Texas over some of the additional defendants named herein, 417 Comanche does not explain why it could not have brought counterclaims based on other causes of action in Texas that would have allowed it to recover damages above and beyond the $3 million bond. Certainly, the relief sought in the two actions is not antagonistic or inconsistent and would not serve different purposes. In both cases, the relief sought would primarily compensate 417 Comanche for damages it incurred as a result of being unable to foreclose on the property due to the existence of the injunction.
Any discrepancy in the amount of damages sought in the two actions is in any event overcome by interests of judicial economy, comity, and avoidance of inconsistent judgments. 417 Comanche argues that because the injunction was dissolved, the motion court no longer needs to opine on its propriety. However, it ignores the fact that its counterclaim is still pending. In deciding the tortious interference with contract claim raised in this action, the motion court would have to opine or analyze issues that are also before the Texas court, particularly whether EMRES improperly obtained and/or perpetuated the bond, causing 417 Comanche’s damages. Thus, the danger of inconsistent results remains.
For these reasons, dismissal of the complaint pursuant CPLR 3211(a)(4) was a provident exercise of discretion, and the dissolution of the injunction in Texas does not mandate reinstating the New York complaint.
(Internal quotations and citations omitted).