Legal Document: Bil I, Llc v. Silver Mirror Enterprises, Llc

On April 11, 2024 a MEMORANDUM OF LAW IN REPLY (Motion #001) - Reply Memorandum of Law in Support of Defendant's Motion to Dismiss, Stay or Consolidate Action was filed involving a dispute between Bil I, Llc, and Silver Mirror Enterprises, Llc, for Commercial - Contract in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 05/23/2024 02:04 PM INDEX NO. 606307/2024
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/23/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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BIL I, LLC, Index No. 606307/2024
Plaintiff,
I.A.S. Part 26
- against -
Justice Francis Ricigliano
SILVER MIRROR ENTERPRISES, LLC,
Mot. Seq. No. 1
Defendant.
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REPLY MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS, STAY, OR CONSOLIDATE ACTION

Kishner Miller Himes P.C.

40 Fulton Street, 12th Floor
New York, New York 10038
(212) 585-3425

Attorneys for Defendant
Silver Mirror Enterprises, LLC

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................................................ ii

ARGUMENT ................................................................................................................................ 2

BIL’S ARGUMENTS TO AVOID THE KINGS COUNTY VENUE ARE UNAVAILING ..... 2

A. BIL Misunderstands the Venue/Forum Provision in the Guaranty; It is Not a
Mandatory Venue-Selection Provision ................................................................. 3

1. “Submit To” Language Does Not Create an Exclusive Venue Locale ..... 3

2. The Guaranty’s Venue Provision Does Not Impose Venue Solely in
Nassau County .......................................................................................... 5

B. Silver Mirror Meets the Requirements for Prevailing Under the Prior-Pending-
Action Doctrine ..................................................................................................... 8

1. “Substantial” Identity of Parties is Sufficient for Rule 3211(a)(4)
Relief; the Parties in the Two Cases Here Are Substantially the Same .... 8

2. The Two Cases’ Claims and Relief Are Also Sufficiently the Same
for Rule 3211(a)(4) Purposes .................................................................... 12

CONCLUSION ............................................................................................................................. 16

CERTIFICATION OF WORD COUNT LIMIT .......................................................................... 17

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TABLE OF AUTHORITIES

Cases Pages

31 East 28th Street Note Buyer LLC v. Terzi,
2020 WL 1915157 (Sup. Ct. N.Y. Cty. Apr. 20, 2020) ........................................................... 14

AGCS Marine Ins. Co. v. World Fuel Servs., Inc.,
187 F. Supp. 3d 428 (S.D.N.Y. 2016) ....................................................................................... 5

Arred Enterprises Corp. v. Indem. Ins. Co.,
108 A.D.2d 624 (1st Dep’t 1985) ............................................................................................ 12

Ashwood v. Uber USA, LLC,
219 A.D.3d 1289 (2d Dep’t 2023) ............................................................................................. 9

Brooke Grp. Ltd. v. JCH Syndicate 488,
87 N.Y.2d 530 (1996) ............................................................................................................ 3, 8

Brown Bark III, L.P. v. AGBL Enterprises, LLC,
85 A.D.3d 699 (2d Dep’t 2011) ................................................................................................. 4

Cap. Corp. v. Morgan Invs., Inc.,
154 A.D.2d 501 (1989) .............................................................................................................. 9

Carlyle CIM Agent, L.L.C. v. Trey Res. I, LLC,
148 A.D.3d 562 (1st Dep’t 2017) .......................................................................................... 7, 8

Caro Home v. 181 Westchester Ave. LLC,
192 A.D.3d 503 (1st Dep’t 2021) .............................................................................................. 7

Dornoch Ltd. ex rel. Underwriting Members of Lloyd’s Syndicate 1209 v.
PBM Holdings, Inc., 666 F. Supp. 2d 366, 370 (S.D.N.Y. 2009).............................................. 4

Graham v. Dim-Rosy U.S.A. Corp.,
128 A.D.2d 417 (1st Dep’t 1987) ............................................................................................ 11

Hur v. Carvel Corp.,
2001 WL 1568413 (Sup. Ct. Nassau Cty. Sept. 4, 2001) ......................................................... 4

Kitchen Winners NY, Inc. v. Triptow,
2024 WL 1749681 (2d Dep’t Apr. 24, 2024) ............................................................................ 9

Marsh USA Inc. v. Hamby,
28 Misc. 3d 1214(A) 958 N.Y.S.2d 61 (Sup. Ct. N.Y. Cty. 2010) ............................................ 5

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Mason ESC, LLC v. Michael Anthony Contracting Corp.,
172 A.D.3d 1195 (2d Dep’t 2019) ........................................................................................... 10

Metro. Life Ins. Co. v. Noble Lowndes Int’l, Inc.,
84 N.Y.2d 430 (1994) ................................................................................................................ 5

Milliken & Co. v. Stewart,
182 A.D.2d 385 (1st Dep’t 1992) .............................................................................................. 9

Posadas de Puerto Rico Associates, LLC v. Condado Plaza Acquisition, LLC,
2020 WL 3955824 (Sup. Ct. Monroe Cty. Jul. 09, 2020)......................................................... 6

Proietto v. Donohue,
189 A.D.2d 807 (2d Dep’t 1993), ............................................................................................ 10

Reckson Assocs. Realty Corp. v. Blasland, Bouck & Lee, Inc.,
230 A.D.2d 723 (2d Dep’t 1996) ............................................................................................ 11

Simonetti v. Larson,
44 A.D.3d 1028 (2d Dep’t 2007) ............................................................................................. 10

Somo Audience Corp. v. Perloff,
2019 WL 3557508 (Sup. Ct. N.Y. Cty. Aug. 2, 2019) ............................................................. 7

Somoza v. Pechnik,
3 A.D.3d 394 (1st Dep’t 2004) ................................................................................................. 9

Sri Eleven 1407 Broadway Operator LLC v. Weaver Apparel, LLC,
2023 WL 1961157 (Sup. Ct. N.Y. Cty. Feb. 10, 2023) ........................................................... 13

Sterling Nat. Bank v. E Shipping Worldwide, Inc.,
35 A.D.3d 222 (1st Dep’t 2006) ................................................................................................ 6

Trump v. Deutsche Bank Tr. Co. Americas,
65 A.D.3d 1329 (2d Dep’t 2009) ............................................................................................... 6

Up Assocs., LLC v. Jiqing Dev., Inc.,
27 Misc. 3d 1208(A), 910 N.Y.S.2d 409 (Sup. Ct. Queens Cty. Apr. 2, 2010) ...................... 14

Walker, Truesdell, Roth & Assocs., Inc. v. Globeop Fin. Servs. LLC,
43 Misc. 3d 1230(A) (Sup. Ct. N.Y. Cty. 2013)
aff’d, 145 A.D.3d 16 (1st Dep’t 2016) ...................................................................................... 4

White Light Prods., Inc. v. On the Scene Prods., Inc.,
231 A.D.2d 90 (1st Dep’t 1997) ............................................................................................. 11

iii

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Whitney v. Whitney,
57 N.Y.2d 731 (1982) ............................................................................................................... 2

Rules, Statutes & Other Authorites

CPLR 602(a) ................................................................................................................................. 15
CPLR 2201...................................................................................................................................... 9
CPLR 3211(a)(4) ................................................................................................................... passim
Uniform Civil Rules, § 202.8-b .................................................................................................... 17

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While Plaintiff BIL opposes this Court’s granting relief under the “prior-pending-action”

doctrine, it offers no good reason for maintaining two lawsuits in two different counties for

claims arising from the same real estate transaction. Lacking good reasons, BIL ends up

misstating the legal principles governing both forum/venue provisions and the prior-pending-

action doctrine. In particular, BIL miscomprehends that the provision in issue does not impose

mandatory venue in Nassau County but, quite differently, is a common “Service of Suit”

provision that permits, but does not require, suit in Nassau. Nor does the provision, as BIL

posits, “bar” this Court from applying the prior-pending-action doctrine. Particularly so, given

the considerations, all applicable here, that favor one forum rather than two. To be sure, BIL

suffers no prejudice in being directed to litigate its claim here against Defendant Silver Mirror

Enterprises in the first-filed Kings County Action, where complete relief among the several

parties can be awarded. Silver Mirror Enterprises’ motion should be granted.1

ARGUMENT

BIL’S ARGUMENTS TO AVOID THE KINGS COUNTY VENUE ARE UNAVAILING

This Court is “vest[ed] . . . with broad discretion” in considering whether to grant relief

under CPLR 3211(a)(4) due to another pending action. Whitney v. Whitney, 57 N.Y.2d 731, 732

(1982). Granting relief to Silver Mirror Enterprises will be a sound exercise of the Court’s

discretion.

1
References to “BIL Mem.” are to “Plaintiff’s Memorandum of Law in Opposition to
Defendant’s Motion to Transfer or Dismiss,” filed May 16, 2024 (NYSCEF Doc. No. 16). We
refer to Silver Mirror’s moving memorandum (NYSCEF Doc. No. 12) as “Silver Mirror Mem.”
Other “short form” descriptions and exhibit references are the same as in our moving papers.
2

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A. BIL Misunderstands the Venue/Forum Provision in the
Guaranty; It is Not a Mandatory Venue-Selection Provision

BIL’s main argument is that relief is “wholly barred by the Guaranty’s forum selection

clause.” (BIL Mem. at 5, 6 [referring to Paragraph 11(a) of the Guaranty]). Not so. That

provision is a “Service of Suit Clause,” not a mandatory venue-selection provision.

1. “Submit To” Language Does Not Create an Exclusive Venue Locale

This Court’s assessment of the venue provision is governed by Brooke Grp. Ltd. v. JCH

Syndicate 488, 87 N.Y.2d 530 (1996). In Brooke Group, the Court of Appeals explained that for

a contract provision addressing jurisdiction and venue, “[t]he words and phrases used by the

parties must, as in all cases involving contract interpretation, be given their plain meaning.” Id. at

534. The language in Brooke Group said that if a specified party defaulted on a payment, the

party “will . . . ‘submit to the jurisdiction of a Court of competent jurisdiction within the United

States.’” Id. (emphasis added). The Court of Appeals explained that this is a “Service of Suit

Clause” and rejected the claim that “it must be viewed as a mandatory forum selection clause.”

Id. That followed because the clause “contains no . . . mandatory language binding the parties to

a particular forum,” such as saying that “any dispute between the parties ‘must be treated before’

[a designated court]”; rather, the language means “only that the [party] will submit to the

jurisdiction of” the designated court. Id. That is, “the plain meaning of the words used by the

parties to this contract do not manifest an intention to limit jurisdiction to a particular forum.”

Id. (emphasis added). Therefore, the Service of Suit Clause was “permissive,” and “its terms do

not require defendants to litigate this dispute in New York.” Id.

A federal court in New York elaborated on this distinction as follows: “Under New York

law . . . , it is well-settled that a service of suit clause (unlike a mandatory forum selection

clause) ‘generally provides no more than a consent to jurisdiction. It does not bind the parties to

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litigate in a particular forum . . . .’” Dornoch Ltd. ex rel. Underwriting Members of Lloyd’s

Syndicate 1209 v. PBM Holdings, Inc., 666 F. Supp. 2d 366, 370 (S.D.N.Y. 2009) (Rakoff, D.J.)

(quoting Brooke Group). In consequence, “the Service of Suit Clause ‘is not a “choice of forum”

provision,’ and does not ‘prescribe the forum for the action,’ but instead ‘entail[s] no more than

[a party’s] voluntary submission to the jurisdiction [specified].’” Id. (again quoting Brooke

Group).

As a state court trial articulated the difference:

New York Courts distinguish between mandatory forum selection clauses, which
provide that the specified forum is the exclusive or sole forum in which the matter
may be heard, and permissive clauses, which confer jurisdiction on the specified
forum to hear the matter but do not limit the parties’ rights to sue in another
forum having jurisdiction over the defendants.

Walker, Truesdell, Roth & Assocs., Inc. v. Globeop Fin. Servs. LLC, 43 Misc. 3d 1230(A), 993

N.Y.S.2d 647, at *5 (Sup. Ct. N.Y. Cty. 2013) (underlining and emphasis added), aff’d, 145

A.D.3d 16 (1st Dep’t 2016). Citing numerous cases, and as Brooke Group had instructed, Walker

noted that the particular words used are determinative: “The Courts have repeatedly found forum

selection clauses mandatory if they provide that a specified forum ‘shall’ hear a matter or that the

forum is ‘exclusive.’” Id. (emphasis added). “In contrast, clauses which provide that a party

agrees to, or will, submit to the jurisdiction of a forum are considered permissive.” Id. (emphasis

added). See also Brown Bark III, L.P. v. AGBL Enterprises, LLC, 85 A.D.3d 699, 700 (2d Dep’t

2011)(“since the forum selection clauses in the subject loan documents contain no mandatory

language binding the parties to litigate this action in Florida, jurisdiction is not limited to that

forum”); Hur v. Carvel Corp., 2001 WL 1568413, at *3 (Sup. Ct. Nassau Cty. Sept. 4, 2001)

(Austin, J.) (finding “[venue] language [is] mandatory in its application”; provision stated legal

action “shall only be brought in” designated Connecticut court that “shall” be deemed the court

“of sole and exclusive venue”).
4

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2. The Guaranty’s Venue Provision Does
Not Impose Venue Solely in Nassau County

The Guaranty’s provision states that each of the parties “expressly and irrevocably submit

to” jurisdiction and venue in Nassau County (emphasis added). This is permissive language. It

means that Silver Mirror Enterprises can be sued in Nassau, but that the provision does not bind

the parties to litigate only in Nassau County, or that claims arising from the Guaranty cannot be

lodged against Silver Mirror Enterprises in Kings County.

Nor does the rest of the Guaranty’s Paragraph 11(a) change this conclusion. That

language is that each party “expressly and irrevocably waives any immunity from jurisdiction

thereof and any claim of improper venue, [and] forum non conveniens . . . .” These words are

another way of phrasing “submission” or “consent” to the Nassau County venue, as in the

preceding phrase, and in no way express exclusivity of a venue. Moreover, under the contract-

interpretation principle of ejusdem generis, this latter language “should be interpreted . . . as

referring to conduct similar in nature to the [preceding “submit to” language] with which it was

joined.” Metro. Life Ins. Co. v. Noble Lowndes Int’l, Inc., 84 N.Y.2d 430, 438 (1994).2

BIL’s cases (BIL Mem. at 6) do not support its argument that Nassau County venue is

mandatory. For example, in Marsh USA Inc. v. Hamby, 28 Misc. 3d 1214(A), at *1, 958

N.Y.S.2d 61 (Sup. Ct. N.Y. Cty. 2010), the agreements specified that any action must “be

brought exclusively” in New York County or the Southern District of New York, language that

the court recognized as “mandatory” forum selection clauses. In Sterling Nat. Bank v. E.

2
Accord, AGCS Marine Ins. Co. v. World Fuel Servs., Inc., 187 F. Supp. 3d 428, fn. 18
(S.D.N.Y. 2016) (“The principle of ejusdem generis . . . provides that a general term that follows
a series of specific terms is construed to embrace objects in the same class as or similar to the
specific terms.”); see N.Y. Pattern Jury Instr.--Civil 4:1, Comment 3, “Interpreting Different
Parts of a Contract” (“under the principle of ejusdem generis, different terms in the same
contractual provision can be interpreted as being of the same category or class”).
5

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Shipping Worldwide, Inc., 35 A.D.3d 222, 222 (1st Dep’t 2006), the court said nothing about

whether the forum selection clause was mandatory or permissive, and instead addressed only the

general enforceability of these clauses; see id. at 222 (observing only that the point of clauses is

“to avoid litigation over personal jurisdiction” and that “the well-settled policy of the courts of

this State [is] to enforce contractual provisions for . . . selection of a forum”) (internal quotation

marks and citations omitted).

BIL’s case involving Donald Trump as a developer-plaintiff (Trump v. Deutsche Bank Tr.

Co. Americas, 65 A.D.3d 1329 (2d Dep’t 2009); see BIL Mem. at 6) also turned on mandatory

language. Trump had entered into two financing agreements, one of which contained a venue

provision that any suit brought against Trump’s lenders “shall be instituted” in New York

County. Id. at 1330. Nonetheless, Trump sued his lenders in Queens. The Second Department

granted the lenders’ motion to change venue to New York County so that “the two actions

[could] be jointly tried in New York County.” Id. at 1331.

BIL even argues that when the prior-pending-action doctrine is invoked “as to actions in

a different venue,” any “contractual venue selection provision bars the prior-pending-action

doctrine.” (BIL Mem. at 7-8; emphasis added). But the cases BIL relies on do not come close to

finding the doctrine “barred,” especially where the designated venue is only permissive.

In BIL’s case Posadas de Puerto Rico Associates, LLC v. Condado Plaza Acquisition,

LLC, 2020 WL 3955824, at *4 (Sup. Ct. Monroe Cty. Jul. 09, 2020), the clause required

“exclusive” jurisdiction for a New York County/S.D.N.Y. venue. Moreover, as to the prior-

pending-action doctrine, the court held only that, as a matter of discretion, the generally-applied

“first-to-file” rule for deciding between two cases in different courts can give way where a

mandatory forum selection clause designates one of the jurisdictions. Id. at *6-*7. Somo

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Audience Corp. v. Perloff, 2019 WL 3557508 (Sup. Ct. N.Y. Cty. Aug. 2, 2019), is the same; see

id. at *1 (“party’s first-filed action in another jurisdiction cannot be used to procure a dismissal

where, as here, a mandatory forum selection clause requires the case to be brought in New

York”). BIL’s “see” reference to Caro Home v. 181 Westchester Ave. LLC, 192 A.D.3d 503 (1st

Dep’t 2021) (BIL Mem. at 8), is equally irrelevant; although the opinion is too terse for

understanding the venue clause in issue, one of the parties’ briefs in the lower court clarified that

the clause said actions relating to the lease “shall be litigated only” in Westchester County courts

(see Defendant’s Memorandum of Law, NYSCEF Doc. No. 43, at 2, in Index No. 151079/2019

[quoting venue provision in lease]).

Here, the Kings County Action was filed first and, as shown, Nassau County is a

permissive, not a mandatory, venue. BIL’s cases do not support its “bar” position.

Indeed, one of BIL’s cases contradicts its position, highlighting the mandatory vs.

permissive language distinction that governs here. In Carlyle CIM Agent, L.L.C. v. Trey Res. I,

LLC, 148 A.D.3d 562 (1st Dep’t 2017) (cited in BIL Mem. at 7-8), the court, focusing on the

specific language used, addressed “enforcement of a forum selection clause that was permissive

as to plaintiff-lender, but mandatory as to defendants-borrower and guarantor.” Id. at 562. The

loan documents “required defendants to commence any cause of action against plaintiff

exclusively in the state or federal courts of New York County,” while, “in contrast,” the

documents also “provided that plaintiff [lender] ‘may’ bring any or all judicial proceedings

arising out of the two agreements in New York.” Id. at 563 & fn. 1. The parties’ appellate briefs

quoted the differing language in the loan documents as follows: (i) “All judicial proceedings

brought against any Note Party [i.e., the defendants-borrowers/guarantor]” arising out of the loan

“may be brought” in a New York court; but (ii) “Each Note Party . . . accepts . . . that all judicial

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proceedings . . . against any party . . . shall be brought exclusively” in a New York court. (Brief

of Plaintiff-Appellant in Carlyle CIM, 2016 WL 1151919, at *6-*7). Tellingly, nothing in

Carlyle CIM holds, as BIL asserts, that “[a] contractual venue selection provision bars the prior-

pending-action doctrine.” (BIL Mem. at 7).

Oddly, BIL posits that “if a party files in a permissible venue, the other party cannot

claim that the venue is impermissible.” (BIL Mem. at 6). While literally correct as it is, such a

“permissible” venue does not mean, as BIL would have it, that the venue is a mandatory one that

overrides other appropriate venues dictated due to pendency of another related action.

A final requirement for enforcing venue and forum clauses is pertinent. These clauses are

unenforceable if shown “to be unreasonable.” Brooke Group, 87 N.Y.2d at 534. Under the

circumstances here, it would be unreasonable to enforce the Guaranty’s provision as being

mandatory, prescribing Nassau County as the exclusive venue, in light of the previously-filed

Kings County Action. All the grounds set forth in Silver Mirror Enterprises’ moving papers, and

here, show that Kings County is where BIL can, and should, assert its claim to enforce the

Guaranty. Simply put, BIL’s position for separate lawsuits abandons all practicalities for

litigating claims arising from a singular transaction.

B. Silver Mirror Meets the Requirements for
Prevailing Under the Prior-Pending-Action Doctrine

BIL asserts that “the prior-action-pending doctrine requires a ‘complete identity of

parties, claims, and reliefs sought.’” (BIL Mem. at 9; emphasis added). That is not the law.

1. “Substantial” Identity of Parties is Sufficient for Rule 3211(a)(4) Relief;
the Parties in the Two Cases Here Are Substantially the Same

For “the same” parties under CPLR 3211(a)(4), all that matters, as shown previously, is

that the parties in the two cases are substantially the same. (Silver Mirror Mem. at 9-10) (citing

cases from First, Second, and Third Departments). The law in Second Department -- that “it is

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substantial rather than complete identity of parties which is required to invoke [CPLR

3211(a)(4)],” Cap. Corp. v. Morgan Invs., Inc., 154 A.D.2d 501 -- is of course controlling. See

also Ashwood v. Uber USA, LLC, 219 A.D.3d 1289, 1290 (2d Dep’t 2023) (“a complete identity

of parties is not a necessity for dismissal under CPLR 3211(a)(4)”).

BIL’s cases for its complete-party identity argument (see BIL Mem. at 9-10) are off

point. Two cases were applications for a stay under CPLR 2201 where the other pending actions

were far different from the Kings County Action here. See Kitchen Winners NY, Inc. v. Triptow,

2024 WL 1749681, at *2 (2d Dep’t Apr. 24, 2024) (denying defendants’ cross motion for stay on

plaintiff’s summary judgment motion until “final resolution of a pending legal proceeding in

China”); Somoza v. Pechnik, 3 A.D.3d 394 (1st Dep’t 2004) (stay of second action vacated

because “the two actions arise from discrete agreements for the sale of two separate businesses”;

claims in two actions not “inextricably intertwined”). BIL’s third case also is readily

distinguishable since it involved an arbitration and a request for an injunction. Milliken & Co. v.

Stewart, 182 A.D.2d 385 (1st Dep’t 1992) (stay “pending the determination of an arbitration

proceeding” denied where a “waiver . . . renders the ongoing arbitration . . . irrelevant to this

proceeding,” and stay viewed “[as] an injunction against [other] proceeding . . . pending

resolution of another [action]”). BIL’s few cases do not support its argument that there must be

“complete identity” of the parties for relief under the prior-pending-action doctrine.

BIL’s contention that “only one party,” BIL itself, “is common to both actions” (BIL

Mem. at 10) is contrived. BIL acknowledges in its pleading that: (i) Defendant Silver Mirror

Enterprises “is the owner and operator” of the “‘Silver Mirror’” branded business; (ii) Silver

Mirror Brooklyn is “a subsidiary or affiliate” of Silver Mirror Enterprises; and (iii) the two “are

planning to operate their ‘Silver Mirror’ skincare business” at the Brooklyn locale. (Compl., Ex.

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C, ¶¶ 8, 9, 11). They are not “separate” parties for purposes of assessing commonality under the

prior-pending-action doctrine -- particularly given the judicial economy considerations

underlying the doctrine, and CPLR 3211(a)(4)’s mandate that a court should make such orders as

“justice requires.” (See Silver Mirror’s Mem. at 8-10, 16). As such, BIL and the interrelated

Silver Mirror entities are each a party in both cases, and “substantial” party identity and

commonality exists.

Undaunted, BIL argues that a “close association” among parties does not qualify as

substantial identity. (BIL Mem. at 10). Again, its cases are inapplicable. In Proietto v. Donohue,

189 A.D.2d 807, 808 (2d Dep’t 1993), the court ruled that substantial party identity did not exist

where one action involved “the wives of two of the parties in the other action,” a distinctly

different personal relationship than for related legal entities. In Mason ESC, LLC v. Michael

Anthony Contracting Corp., 172 A.D.3d 1195 (2d Dep’t 2019), the asserted common parties

were the “individual principals” of a corporate party; the court found that these principals were

“distinguishable from the corporation itself,” and that an identity of parties could not be

premised on, “in effect, piercing the corporate veil.” Id. at 1196. No such veil piercing applies

here. Rather the direct corporate-law relationship among the two Silver Mirror entities is

undisputed, and it establishes that they are functionally one and the same for purposes of the

prior-pending-action doctrine.

Likewise unpersuasive is BIL’s contention that CPLR 3211(a)(4) “is inapplicable”

because “the party roles are reversed.” (BIL Mem. at 8). The courts frequently grant relief under

CPLR 3211(a)(4) without regard to whether a party in interest is a plaintiff or defendant in the

prior or subsequent cases, so long as “both suits arise out of the same subject matter or series of

alleged wrongs.” Simonetti v. Larson, 44 A.D.3d 1028, 1029 (2d Dep’t 2007) (dismissal upheld

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in estate-related litigation where defendant who was sued in Nassau County for breach of

fiduciary duty and other wrongdoing had previously commenced petition in Florida court for

estate letters of administration); see also Reckson Assocs. Realty Corp. v. Blasland, Bouck &

Lee, Inc., 230 A.D.2d 723, 724 (2d Dep’t 1996) (in dispute over contract for consulting services,

consultant first sued real estate corporation in Suffolk County, and next day corporation sued

consultant in Onondaga County, thus “flipping” plaintiff/defendant in the two cases; the Second

Department upheld consolidation in first-filed (Suffolk County) case without regard to who was

suing whom); Graham v. Dim-Rosy U.S.A. Corp., 128 A.D.2d 417, 418 (1st Dep’t 1987)

(reversing denial of stay due to pendency of “first commenced” Connecticut case where parties

were “reversed” in the two actions; “[a] favorable ruling in the Connecticut action for [the

employer-] defendant . . . (plaintiff there) will, in all likelihood, establish the truth of the alleged

statements [in issue] to the subsequent employer of [employee-] plaintiff (defendant there) and

undermine [the New York employee-plaintiff’s] . . . cause of action” in New York case).

BIL also proclaims that the prior-pending-action doctrine is “inapplicable where the relief

demanded in the two actions are [sic] ‘antagonistic and inconsistent.’” (BIL Mem. at 8-9). That

assertion does not apply here. The reliefs in the two cases mirror one another -- whether the

landlord (BIL) is liable for breaching its lease with the tenant (Silver Mirror Brooklyn) or, vice-

versa, whether the tenant is liable to BIL for the unpaid rent. Adjudicating the two cases

together, by consolidation as one form of appropriate relief, will promote a consistent result, not

inconsistent ones.3

3
In any event, BIL’s string-cited cases (BIL Mem. at 8-9) provide no support for its
argument. Several are from 1907 and 1914, preceding the 1962 enactment of the CPLR and its
codification of the prior-pending-action doctrine as defense. Others are distinguishable, or
manifestly irrelevant. For example, in White Light Prods., Inc. v. On the Scene Prods., Inc., 231
A.D.2d 90 (1st Dep’t 1997), the other action was in California, and therefore (footnote cont’d)
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2. The Two Cases’ Claims and Relief Are Also
Sufficiently the Same for Rule 3211(a)(4) Purposes

Finally, BIL opposes prior-pending-action relief on the rationales that the Kings County

Action “has nothing to do with rent” and (inexplicably) that “[BIL] is not obligated to make

repairs.” (BIL Mem. at 11, 12-18; see headings). These arguments are wrong and irrelevant.

As noted (see Silver Mirror Mem. at 11-12), both cases are all about the rent. In this case,

BIL sues the lease Guarantor, Silver Mirror Enterprises, because the subsidiary-tenant, Silver

Mirror Brooklyn, refused to pay rent per the lease. In the Kings County Action, Silver Mirror

Brooklyn sued its landlord BIL for breach of the lease, which was the reason for not paying the

rent. The unpaid rent under the lease is squarely at issue in both cases.

BIL wants to sidestep the rent issue. It observes that Silver Mirror Brooklyn is suing in

Kings County because BIL has not met its obligation to take commercially reasonably actions, as

required under the lease, to cause the condominium Board to make necessary structural repairs in

the premises. True, but irrelevant to this motion. Silver Mirror Brooklyn alleges that “Landlord

[i.e., BIL] has breached the Lease” and, as relief, seeks “compensatory and consequential

damages against Landlord.” (Ex. A, ¶¶ 129, 130; emphasis added). BIL in the Kings County

Action will undoubtedly counterclaim against Silver Mirror Brooklyn for the unpaid rent. (That

counterclaim has not yet been asserted in the Kings County Action because motions to dismiss

are pending and issue therefore has not been joined.) BIL also can name Silver Mirror

“comity” with another state’s judicial system was “a major concern.” Id. at 93. Further, the
“principal contention” was which proceeding was “first filed,” and “whether the priority of the
California and New York actions should be determined by the date on which they were filed or
by the date on which service was effected.” Id. That is not an issue here. BIL’s other cases hardly
support its arguments because, for example, the courts ordered consolidation, one of the
remedies Silver Mirror Enterprises urges. E.g., Arred Enterprises Corp. v. Indem. Ins. Co., 108
A.D.2d 624, 627 (1st Dep’t 1985) (while case “is not dismissable on the ground of ‘another
action pending’ . . . [t]here should be a joint trial of both actions”).
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Enterprises, the Guarantor-Defendant here, in that case (and Silver Mirror Enterprises will agree

to accept service of process and not contest venue).

Further, as also already shown, Silver Mirror Enterprises can, and will, maintain defenses

on the Guaranty. (See Silver Mirror Mem. at 12-13). At least one of its main defenses is

inextricably bound up in the lease and tenancy of Silver Mirror Brooklyn -- that is, that Silver

Mirror Brooklyn has been constructively evicted from its leased premises, which is a total failure

of consideration to the principal obligor that Silver Mirror Enterprises can assert as guarantor.

Nowhere in its opposition papers does BIL address this showing. Rather, BIL acknowledges that

a tenant who “prove[s] . . . constructive eviction” “may withhold rent.” (BIL Mem. at 17).

Whether that defense will prevail, and whether Silver Mirror Brooklyn will be excused

from paying all or part of its rent due to constructive eviction, or whether landlord or tenant are

in breach under other lease obligations, are questions to be adjudicated on the merits. Resolving,

or even addressing, them has no place on this motion. Still, those questions all arise from the

same real estate transaction and the same legal relationships, and the issue is whether they should

be adjudicated in one forum, the Kings County Action, or both there and here. The prior-

pending-action doctrine compels the conclusion for the one forum.

BIL’s argument that a guarantor action can proceed “separately” from an action on the

underlying obligation (BIL Mem. at 10-11) is of no consequence. While that sometimes might be

the case, the courts have hardly permitted tandem cases “resoundingly” (BIL Mem. at 10), and

here enforcement of the Guaranty is inextricably bound up in the claims and defenses in the

Kings County Action.4

4
Yet, again, BIL’s cases do not support its blanket separability argument. See, e.g., Sri
Eleven 1407 Broadway Operator LLC v. Weaver Apparel, LLC, 2023 WL 1961157, at *2 (Sup.
Ct. N.Y. Cty. Feb. 10, 2023) (court’s terse decision did not address (footnote cont’d)
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While eluding the actual issues, BIL spends several pages arguing that Silver Mirror

Enterprises “might” assert as a defense “the Landlord’s failure to make repairs to the premises,”

which “would utterly lack merit.” (BIL Mem. at 12; see id. at 12-18). The Court can ignore the

argument, because Silver Mirror Brooklyn does not argue it as grounds for withholding rent in

the Kings County Action.

Specifically, as Silver Mirror Brooklyn alleges in that case, “it is exclusively the Condo

Board’s responsibility to maintain and repair” the damaged parts of the common areas, but the

Board “failed to make any temporary or permanent repairs.” (Ex. A, ¶¶ 85, 92). Indeed, in the

Kings County Action, BIL acknowledges the opposite of its contention to this Court -- according

to BIL there, “Plaintiff [Silver Mirror Brooklyn] is not suing Owner [BIL] for failing to make

any repairs.” (BIL’s Jan. 19, 2024 “Memorandum in Support of Motion to Dismiss,” NYSCEF

Doc. No. 50, at 8; emphasis in original).

Nonetheless, BIL here purports to refute a “defense” that neither of the Silver Mirror

entities ever make in order to assert that “[t]he absence of any such defense indicates there is no

commonalty of issues.” (BIL Mem. at 12). BIL’s position is sophistry.

The commonalty of the issues, claims, and relief of the two cases is manifest. Both at

bottom involve unpaid rent on a commercial real estate transaction where (i) BIL’s breach is the

relationship of claims or defenses in case before court and other pending case); 31 East 28th
Street Note Buyer LLC v. Terzi, 2020 WL 1915157, at *3 (Sup. Ct. N.Y. Cty. Apr. 20, 2020)
(prior “pending” action actually “was dismissed” and, in any event, defendant’s counterclaims in
prior action were “based on breach of different mortgage contracts” than in case before court,
and thus “involve separate legal obligations that flow from separate agreements”); Up Assocs.,
LLC v. Jiqing Dev., Inc., 27 Misc. 3d 1208(A), 910 N.Y.S.2d 409 (Sup. Ct. Queens Cty. Apr. 2,
2010) (no stay warranted because “relief sought in this action [to foreclose on] the corporate
mortgage” was different from “relief sought in the prior action” which was to foreclose on
mortgage given on different property).
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basis for Silver Mirror Brooklyn’s claim, and for its defense for not paying rent, and (ii) that

unpaid rent is the basis for BIL’s claim here against Silver Mirror Brooklyn’s parent corporation

to recover the unpaid rent. In other words, BIL’s claims here and the Silver Mirror entities’

defenses are different ways of seeking relief from the same factual issue.

Last, while opposing Silver Mirror Enterprises’ motion generally, BIL offers no

opposition to consolidation particularly. The consolidation statute, CPLR § 602(a), authorizes the

Court to consolidate this case with the Kings County Action “to avoid unnecessary costs or

delay.” (See Silver Mirror Mem. at

Case Info

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Francis Ricigliano Track Judge’s New Case

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May 23, 2024

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April 11, 2024

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