Opinion
55476/2020
10-20-2020
TIG INSURANCE COMPANY, as successor to International Insurance Company, and The North River Insurance Company, Plaintiffs, v. CATHOLIC FOREIGN MISSION SOCIETY OF AMERICA, INC., a/k/a Maryknoll Fathers and Brothers, Defendant.
Kennedys CMK LLP, Attorneys for Plaintiffs, 120 Mountain View Boulevard, Basking Ridge, NJ 07920, (908) 605-2974. Lowenstein Sandler LLP, Attorneys for Defendant, 1 Lowenstein Drive, Roseland, NJ 07068, (973) 597-2500.
Kennedys CMK LLP, Attorneys for Plaintiffs, 120 Mountain View Boulevard, Basking Ridge, NJ 07920, (908) 605-2974.
Lowenstein Sandler LLP, Attorneys for Defendant, 1 Lowenstein Drive, Roseland, NJ 07068, (973) 597-2500.
Joan B. Lefkowitz, J.
DECISION & ORDER
Index No: 55476/2020
Motion Return Date:
September 25, 2020
Motion Seq. No. 3
The following papers (e-filed documents 35-39; 40; 42-43) were read on the motion by defendant for an order dismissing the amended complaint pursuant to CPLR 3211(a)(4) and CPLR 327(a).
Notice of Motion, Affirmation (Exhibits A-D)
Affirmation in Opposition (Exhibits A-D)
Upon reading the foregoing papers it is
ORDERED the motion is granted, and the amended complaint is dismissed.
On May 27, 2020, plaintiffs filed the present lawsuit which seeks judgment declaring plaintiff is not obligated to defend and indemnify defendant (hereinafter Maryknoll) in lawsuits pending in the State of Hawaii. The underlying lawsuits allege that priests employed by Maryknoll, primarily one named James Jackson, sexually abused the plaintiffs.
On July 28, 2020, Maryknoll filed a lawsuit in Hawaii state court against ten insurance companies, including the plaintiffs here, involving seventeen policies, which seeks, among other things, a judgment declaring the insurance companies are obligated to defend and indemnify Maryknoll in seven lawsuits alleging sexual abuse filed in Hawaii state court, including the lawsuits which underlie this action.
Two weeks after defendant filed its motion to dismiss the original complaint (motion sequence No. 2), the plaintiffs here filed an amended complaint to add the insurance companies named in the Hawaii lawsuit as "interested parties."
Prior to answering the amended complaint Maryknoll moves for an order dismissing or staying the action upon the grounds 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" ( CPLR 3211[a][4] ), and upon the grounds of forum non conveniens ( CPLR 327[a] ).
"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" ( Seneca Specialty Ins. Co. v. T.B.D. Capital, LLC , 143 AD3d 971, 972 [2d Dept 2016] [internal quotation marks and citation omitted] ). Factors to be considered when determining whether to dismiss an action when a similar action is pending in another court include whether there is a substantial identity of parties and claims, whether one action is more comprehensive than the other, whether the actions were commenced reasonably close in time, and whether one court has a more significant nexus to the controversy (Seneca , supra ; IRX Therapeutics, Inc. v. Landry, 150 AD3d 446 [1st Dept 2017] ; AIG Financial Products v. Penncara Energy, LLC , 83 AD3d 495 [1st Dept 2011] ; San Ysidro Corp. v. Robinow , 1 AD3d 185 [1st Dept 2003] ).
Here, the actions were filed reasonably close in time, and there is substantial identity of the parties and the claims — whether plaintiffs are obligated to defend and indemnify Maryknoll in the underlying Hawaii lawsuits. Moreover, Hawaii has a closer nexus to the controversy since the evidence in the underlying lawsuits is located in Hawaii. In addition, the Hawaii lawsuit is more comprehensive since it covers seven (rather than four) underlying lawsuits involving ten insurance companies and seventeen policies, and it also seeks a declaration apportioning the coverage amongst the insurers.
Plaintiff, however, argues that since it filed the New York lawsuit two months before Maryknoll commenced the lawsuit in Hawaii (May 27, 2020 v July 20, 2020) the court should not dismiss the New York lawsuit.
"[C]hronology is not dispositive, particularly where both actions are at the earliest stages of litigation. The practice of determining priorities between pending actions on the basis of dates of filing is a general rule, not to be applied in a mechanical way, regardless of other considerations (AIG Financial Products , supra at 496). Here, both actions are in their initial stages. Maryknoll has not filed an answer in the New York action. Discovery has not begun in the Hawaii action. Moreover, there is evidence to suggest that plaintiffs' chronological priority was achieved by duplicity or by an effort to gain a tactical advantage (see , IRX Therapeutics , supra ; AIG Financial Products , supra ; San Ysidro Corp. , supra ). Maryknoll claims it provided confidential information to plaintiffs in the underlying Hawaii lawsuits in an effort to convince plaintiffs to provide coverage, only to find plaintiffs used the confidential information to help craft the New York complaint. In addition, plaintiffs filed their amended complaint in New York two weeks after the defendant filed its motion to dismiss the original complaint. It appears plaintiffs filed the amended complaint in response to the filing of defendant's original motion to dismiss so plaintiffs could now argue that the New York action was as comprehensive as the Hawaii action.
Accordingly, the coverage issue raised in both the Hawaii and New York actions should be determined in Hawaii. Thus, the New York action is dismissed.
In view of the determination above the court need not address the issue of forum non conveniens.