Decision and Order Defendant Angel Feican moves to dismiss Plaintiff American Home Buyers Consulting Services, Inc.’s (“American Home Buyers”) complaint pursuant to CPLR 3211(a)(4) due to the fact that the Complaint arises out of the same facts and circumstances as a previously filed action that is currently pending before the Superior Court of New Jersey, Law Division, County of Passaic (Index No. PAS-L-003878-17) (the “New Jersey action”). The Plaintiff opposes the Defendant’s motion in its entirety.The procedural history and factual background of this matter have been gleaned from the Complaint as well as the parties’ respective motion papers. On May 24, 2018, Plaintiff filed a complaint against Defendant alleging breach of Contract in connection with a contract of sale for property located at 705 East 183rd Street Bronx, New York (the “Bronx Property”). However, prior to the filing of the instant action, in November 2017, Defendant’s business partner Alex Daikoku filed a Complaint against American Home Buyers in New Jersey. In the New Jersey action, Daikoku alleges that the contract pertaining to the Bronx Property, the subject of the instant action, was mutually terminated by the parties and the deposit moneys paid in connection with that contract were instead applied towards the purchase of a property located at 204 Haledon Avenue in Prospect Park, New Jersey (the “New Jersey Property”). Thus, the Defendant argues, the termination of the Bronx contract was made an issue in the New Jersey action. The Amended Complaint in the New Jersey action alleges that American Home Buyers and Feican entered into a Contract of Sale to purchase the Bronx Property at the agreed-upon purchase price of $425,000. Daikoku was to provide Feican $42,000 towards a down payment for the Bronx Property and Feican would obtain a mortgage for the purchase of the Bronx Property. Feican then provided American Home Buyers a $42,000 down payment towards the purchase of the Bronx Property. At some point thereafter, Daikoku, Feican and American Home Buyers mutually agreed to terminate the contract for the Bronx Property after Feican’s mortgage application was denied. However, American Home Buyers’s principal Darshan Shah refused to return the $42,000, instead offering to apply the money as a credit towards the sale of the New Jersey Property.In its opposition, Plaintiff states that there is “absolutely no legal or factual connection to New Jersey with respect” to the transaction involving the Bronx Property, as both Plaintiff and Defendant in the instant action are New York residents and none of the parties to the New York transaction ever contemplated litigating any aspect of the transaction in a New Jersey court. Plaintiff further argues that none of the conduct set forth in Plaintiff’s Complaint in the instant matter occurred in New Jersey. Therefore, Plaintiff urges the Court to deny Defendant’s motion.Defendant’s motion to dismiss is granted. Generally, New York courts follow the first-in-time rule, meaning that “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.” Seneca Specialty Ins. Co. v. T.B.D. Capital, LLC, 143 A.D.3d 971 (2nd Dep’t 2016), quoting L-3 Communications Corp. V. SafeNet, Inc., 45 A.D.3d 1 (1st Dep’t 2007). Pursuant to CPLR 3211(a)(4), “[a] party may move for judgment dismissing one or more causes of action asserted 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…” A Court has broad discretion and may exercise its authority to dismiss a pending action when another action is pending and where there is a “substantial identity of the parties and causes of action.” Simonetti v. Larson, 44 A.D.3d 1028 (2nd Dep’t 2007). To warrant dismissal, the two actions must be “sufficiently similar” and the relief sought must be “the same or substantially the same.” Id. It is not necessary that the precise legal theories presented in the first proceeding be presented in the second proceeding. Matter of Schaller v. Vacco, 241 A.D.2d 663 (3rd Dep’t 1997). The critical element is that both suits must “arise out of the same subject matter or series of alleged wrongs.” White Light Productions v. On the Scene Productions, 231 A.D.2d 90 (1st Dep’t 1997); quoting Kent Development Company v. Liccione, 37 N.Y.2d 899, 901 (1975); see also Liebert v. TIAA-CREF, 34 A.D.3d 756, 757 (2nd Dep’t 2006).Applying these principals to the matter presently before the Court, the pleadings in the New Jersey action and the New York action reveal that both suits arise out of the same series of alleged actual wrongs. See Kent Development Company, supra. Both actions are ultimately predicated upon a failed transaction for the sale of the Bronx Property. The defendant in the instant matter entered into a contract of sale with American Home Buyers for the Bronx Property, and Daikoku, Plaintiff in the New Jersey action, provided the $42,000 down payment to purchase same. After the parties mutually agreed to cancel the Bronx transaction, Daikoku entered into a subsequent transaction with American Home Buyers to purchase property in New Jersey, part of the down payment of which was obtained from using the down payment from the terminated Bronx transaction.Moreover, as the Defendant correctly points out, the Plaintiffs in both the New Jersey Complaint (Daikoku) and the New York Complaint (American Home Buyers) are seeking relief from claims which were initiated by the cancellation of the transaction for the Bronx property for which Defendant and Daikoku submitted the down payment. In the New Jersey Action, American Home buyers filed a Counterclaim in which it seeks damages, including “Contract Deposit,” in connection with the alleged breach of the New Jersey property contract. That contract deposit represents a credit of $42,000, which was initially paid as a down payment in connection with the sale of the Bronx Property. Therefore, American Home Buyers, in the instant suit, is seeking an award of the same funds it seeks to recover in the New Jersey Action. Consequently, the Court finds that the relief sought in both actions is substantially the same so as to warrant dismissal of the New York action in an effort to avoid inconsistent judgments which would likely affect the relief sought. Simonetti v. Larson, 44 A.D.3d 1028 (2nd Dep’t 2007). It is also of no moment that the parties in both actions are not identical. Substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4). Syncora Guarantee, Inc. V. J.P. Morgan Securities, LLC, 110 A.D.3d 87 (1st Dep’t 2013). Here, although Defendant is not a named party in the New Jersey action, American Home Buyers has previously argued that Defendant is an indispensable party to that matter. American Home Buyers cannot have it both ways by claiming that Feican is an indispensable party in the New Jersey action, while simultaneously opposing dismissal of the New York action on the grounds that Feican is not a named party in the New Jersey action.Therefore, for the reasons set forth above, the Defendant’s motion to dismiss is granted. The above constitutes the Decision and Order of the Court.Dated: August 15, 2018 ENTER:
