On March 6, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Saleh v. Hudson 418 Riv. Rd. LLC, 2023 NY Slip Op. 30767(U), dismissing an action in favor of a prior pending action even though the actions included differing legal theories, explaining:
CPLR §3211(a)(4) provides that a motion to dismiss a lawsuit on the grounds another lawsuit is pending should be granted when both suits arise out of the same subject matter or series of alleged wrongs. 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. Thus, where the reliefs sought in the two actions are substantially the same then dismissal is proper. The term substantially the same’ is defined as a cause of action as sufficiently similar to a simultaneously pending cause of action when the ruling of one may directly conflict with the ruling of the other.
First, there is no requirement for identical legal theories to be presented in both actions as long as the two actions are substantially similar. The causes of action in this case seek a determination regarding ownership of the property and specifically that Hudson418 is not an owner. The causes of action in the other lawsuit seek a determination regarding ownership of the property and specifically that the Masjid is not an owner. These two lawsuits seek essentially the same relief, namely the ownership of the property. The mere fact that different instruments govern the respective arguments regarding ownership does not mean the two lawsuits are inherently different. Further, again, the fact the different parties present various grounds demonstrating ownership does not mean the two lawsuits are about different issues. Thus, there is no basis for dual lawsuits that deal, essentially, with the same issues, namely ownership of the property· in question.
Further, the mere fact the other action has additional defendants that involve more than just ownership concerns is not a basis in which to distinguish the two lawsuits. Further, the plaintiff here can secure any derivative claims by simply adding such claims in the other lawsuit. The plaintiff has not presented any basis why two lawsuits were instituted seeking essentially the same relief.
(Internal quotations and citations omitted).