Opinion
2021–05079 Index No. 724897/20
09-13-2023
Marla ASHWOOD, respondent, v. UBER USA, LLC, et al., appellants.
Coughlin Betke LLP, New York, NY (Christopher G. Betke, Andrew R. Ferguson, and Benjamin H. Levites of counsel), for appellants.
Coughlin Betke LLP, New York, NY (Christopher G. Betke, Andrew R. Ferguson, and Benjamin H. Levites of counsel), for appellants.
FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered June 15, 2021. The order denied the defendants’ motion pursuant to CPLR 3211(a)(4) and (10) to dismiss the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
On January 11, 2018, the plaintiff allegedly was a passenger in a vehicle owned and operated by Olritch Beaubrun when that vehicle collided with another vehicle. In December 2020, the plaintiff commenced this action to recover damages for personal injuries, alleging, among other things, that Beaubrun was an employee of the defendants and that the accident occurred as a result of their negligent training and supervising of him. The defendants moved pursuant to CPLR 3211(a)(4) and (10) to dismiss the complaint. The defendants argued that the complaint should be dismissed because there was another pending action commenced by the plaintiff against, among others, Beaubrun to recover damages for personal injuries she allegedly sustained in the accident. In the alternative, the defendants argued that the complaint should be dismissed for failure to join necessary parties. The Supreme Court denied the motion, and the defendants appeal.
Pursuant to CPLR 3211(a)(4), a party may move to dismiss 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 in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same’ " ( Dec v. BFM Realty, LLC, 153 A.D.3d 497, 497, 59 N.Y.S.3d 453, quoting Swartz v. Swartz, 145 A.D.3d 818, 822, 44 N.Y.S.3d 452 ; see Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324 ). While a complete identity of parties is not a necessity for dismissal under CPLR 3211(a)(4) (see Proietto v. Donohue, 189 A.D.2d 807, 807, 592 N.Y.S.2d 457 ), 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" ( JPMorgan Chase Bank, N.A. v. Luxama, 172 A.D.3d 1341, 1342, 102 N.Y.S.3d 238 [internal quotation marks omitted). Here, although the plaintiff is the same in both actions, there are no common defendants. Thus, since there is not a substantial identity of parties, the Supreme Court providently exercised its discretion in denying dismissal of the complaint based on the other pending action.
"A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that ... the court should not proceed in the absence of a person who should be a party" ( CPLR 3211[a][10] ). Here, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(10) upon determining that joining the actions for a joint trial would remedy the plaintiff's failure to join necessary parties in this action. Contrary to the defendants’ contention, a joint trial would be proper under CPLR 602(a) because both actions were commenced by the same plaintiff, arise out of the same accident, and involve common questions of law and fact (see Oboku v. New York City Tr. Auth., 141 A.D.3d 708, 710, 35 N.Y.S.3d 710 ; Cusumano v. Cusumano, 114 A.D.3d 633, 634, 980 N.Y.S.2d 126 ).
CONNOLLY, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.