Haller v. Lopane

In an action to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Westchester County (Barone, J.), dated August 1, 2002, which denied their motion, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (4). Ordered that the order is affirmed, with costs. The defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (4), based on another action pending between the same parties seeking payment of a promissory note and recovery of amounts allegedly improperly distributed to the defendant Anthony Lopane as administrator of his wife’s estate, which should have been paid to the plaintiff as a result of the debt reflected in the note. The instant action seeks to recover damages for fraud, alleging, inter alia, that the defendant Anthony Lopane and his wife had presented the plaintiff with a forged note, never intending to repay the debt. The court denied the motion to dismiss the complaint and we affirm. 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 for the same cause of action (see Whitney v Whitney, 57 NY2d 731 [1982]). Here, each action is based on a separate theory of recovery. Thus, the court properly exercised its discretion in denying the motion to dismiss on this ground. Furthermore, contrary to the defendants’ contention, the instant action is timely (see CPLR 203 [g]; 213 [8]). The defendants’ remaining contentions are without merit. Luciano, J.P., Adams, Townes and Mastro, JJ., concur.