Gordon, Hardy and Mulè Defeat Motion to Dismiss

November 25, 2019 | Commercial Litigation

Tamika Hardy, Michael Mulè and Stuart Gordon successfully defeated a motion to dismiss a complaint pursuant to CPLR 3211(a)(4) based on other action pending and seeking to cancel a notice of pendency filed in connection with the motion.

Plaintiff, a for-profit college, sought to set aside the college’s no-consideration conveyance of real property to defendants, the college’s former president and his wife. Defendant argued that the action was barred because a prior action was brought by an individual (a stakeholder in the college) in a double-derivative capacity for the same relief and argued that the notice of pendency was impermissible because the same individual had previously filed a notice of pendency (which had since lapsed).

The Court denied the motion because the college was unable to assert its own claim (and file its own notice of pendency) until the former president was removed in 2014. The Court also reasoned that the danger that CPLR 3211(a)(4) seeks to avoid, i.e., conflicting rulings relating to the same matter, does not exist because both matters (the prior derivative action and the subject action) are pending before the same court and same judge. Likewise, the Court held that, under these circumstances, the filing of the notice of pendency did not evince an attempt to abuse the privilege of filing a notice of pendency.

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