Brach v. Schwartz

2023 NY Slip Op 02100

Jack Brach, etc., et al., respondents, v. Martin Schwartz, et al., appellants.

No. 2020-00994, Index No. 713506/19

Supreme Court of New York, Second Department

April 26, 2023

Jason J. Smith, New York, NY, for appellants.

Morrison Cohen, LLP, New York, NY (Y. David Scharf, Latisha V. Thompson, and Joaquin Ezcurra of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for breach of fiduciary duty, for injunctive relief, and for an accounting, the defendants appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated December 9, 2019. The order insofar as appealed from, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a)(4) to dismiss the causes of action to recover damages for breach of fiduciary duty and for a permanent injunction, and to dismiss the complaint on the ground that the plaintiffs had perpetrated a fraud upon the court.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action in the Supreme Court, Queens County, for an accounting of the books and records of certain entities of which the defendant Martin Schwartz served as trustee, manager, or general partner, to recover damages for breach of fiduciary duty by Schwartz, and for a permanent injunction. The defendants moved pursuant to CPLR 3211(a)(4) to dismiss the complaint, noting that proceedings for an accounting of the books and records of the subject entities were pending in the Surrogate's Court, Queens County. The defendants also argued that the complaint should be dismissed on the ground that the plaintiffs had perpetrated a fraud upon the court, as they had misrepresented that Schwartz had refused to provide financial information for the subject entities. The Supreme Court granted that branch of the defendants' motion which was to dismiss the cause of action for an accounting, and denied those branches of the motion which were to dismiss the causes of action to recover damages for breach of fiduciary duty and for a permanent injunction, and to dismiss the complaint on the ground that the plaintiffs had perpetrated a fraud upon the court. The defendants appeal from so much of the order as denied those branches of their motion which were to dismiss the causes of action to recover damages for breach of fiduciary duty and for a permanent injunction, and to dismiss the complaint on the ground that the plaintiffs had perpetrated a fraud upon the court.

CPLR 3211(a)(4) provides that a party may move for judgment dismissing one or more causes of action asserted against that party 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. The court need not dismiss upon this ground but may make such order as justice requires. 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...