Mordini Estates, Inc. v Punto Zero, Inc., 2014 NY Slip Op 51661(U)
“In support of the branch of tenant’s motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4), tenant failed to demonstrate that the relief sought in tenant’s pending declaratory judgment action was the same or substantially the same as that sought by landlord in this holdover proceeding to recover possession. ” Dismissal on the ground of prior proceeding pending is not appropriate where substantially the same relief is not being sought in the two proceedings’ ”
The quick and dirty of this case is that where a declaratory action and the plenary action or special proceeding seek similar or the same relief, a dismissal motion may be appropriate. I would note that the Court is Solorzano did not find the no-fault action (seeking recovery on overdue bills) and the declaratory judgment action (seeking a broad coverage based determination) are similar for purposes of this rule.
