Opinion
2012-12-19
In the Matter of Marion Cartwright WILLNUS, deceased. Lisa Kyle, et al., appellants; Thomas Maguire, et al., respondents.
Marisa Falero, Brooklyn, N.Y., for appellants. George Magriples, Astoria, N.Y., for respondents.
Marisa Falero, Brooklyn, N.Y., for appellants. George Magriples, Astoria, N.Y., for respondents.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.
In a proceeding, inter alia, pursuant to SCPA 702 to obtain limited letters of administration for the estate of Marion Cartwright Willnus, the petitioners appeal (1), as limited by their brief, from so much of an order of the Surrogate's Court, Kings County (Lopez Torres, S.), dated March 1, 2011, as granted that branch of the motion of Thomas Maguire and Steven Maguire which was to dismiss the petition pursuant to CPLR 3211(a)(4), and (2) from an order of the same court dated June 17, 2011, which denied their motion for leave to reargue and renew their opposition to that branch of the motion of Thomas Maguire and Steven Maguire which was to dismiss the petition pursuant to CPLR 3211(a)(4).
ORDERED that the appeal from so much of the order dated June 17, 2011, as denied that branch of the petitioners' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument ( see Matter of Braver v. Silberman, 90 A.D.3d 654, 656, 936 N.Y.S.2d 211); and it is further,
ORDERED that the order dated March 1, 2011, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated June 17, 2011, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending ( see Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324;DAIJ, Inc. v. Roth, 85 A.D.3d 959, 959, 925 N.Y.S.2d 867), and may dismiss an action where there is a substantial identity of the parties and causes of action ( see Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d 622, 622, 886 N.Y.S.2d 914;Simonetti v. Larson, 44 A.D.3d 1028, 1028, 845 N.Y.S.2d 369). It is not necessary that the precise legal theories presented in the first action also be presented in the second action; rather, it is sufficient if the relief sought is “the same or substantially the same” ( Kent Dev. Co. v. Liccione, 37 N.Y.2d 899, 901, 378 N.Y.S.2d 377, 340 N.E.2d 740;see Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d at 622, 886 N.Y.S.2d 914;Simonetti v. Larson, 44 A.D.3d at 1029, 845 N.Y.S.2d 369). “The critical element is that ‘both suits arise out of the same subject matter or series of alleged wrongs' ” ( Cherico, Cherico & Assoc. v. Midollo, 67 A.D.3d at 622, 886 N.Y.S.2d 914 [internal quotation marks omitted]; see Kent Dev. Co. v. Liccione, 37 N.Y.2d at 901, 378 N.Y.S.2d 377, 340 N.E.2d 740;Simonetti v. Larson, 44 A.D.3d at 1029, 845 N.Y.S.2d 369).
Here, the Surrogate's Court providently exercised its discretion in granting that branch of the motion of the respondents Thomas Maguire and Steven Maguire (hereinafter together the respondents) which was to dismiss the petition pursuant to CPLR 3211(a)(4). The relief sought by the petitioners in this Surrogate's Court proceeding and a pending guardianship proceeding they had previously commenced in the Supreme Court was substantially the same, namely, a return of the decedent's assets to a family trust, of which the petitioners were residuary beneficiaries ( see Simonetti v. Larson, 44 A.D.3d at 1029, 845 N.Y.S.2d 369). In addition, both proceedings arose out of the same allegations of wrongdoing on the part of the respondents in handling the decedent's financial affairs, and there was substantial identity of parties in each proceeding.
The Surrogate's Court properly denied that branch of the petitioners' motion which was for leave to renew their opposition to that branch of the respondents' motion which was to dismiss the petition pursuant to CPLR 3211(a)(4), since the new facts offered on the motion would not have changed the prior determination ( seeCPLR 2221[e][2]; Grossman v. New York Life Ins. Co., 90 A.D.3d 990, 992, 935 N.Y.S.2d 643).
The petitioners' remaining contentions are either not properly before this Court or without merit.