Defendant Zalmen Reiss and Associates, Inc. ("Zalmen Reiss") moves to dismiss the action pursuant to CPLR 3211 (a) (4) and (7) and for sanctions pursuant to 22 NYCRR § 130-1.1.

This action arises out of an alleged agreement between plaintiff American Express Travel Related Services Company, Inc. ("AmEx Travel") and defendant Zalmen Reiss, entered into on or about November 3, 1999, under which plaintiff claimed that it contracted to provide credit card services to defendant. The agreement enabled defendant, a retailer, to accept and charge its [*2]customers' American Express credit cards as payment for their purchases. AmEx Travel would then compensate defendant for the charges accrued and seek payment for the merchandise directly from the customer. Plaintiff alleges that defendant requested from plaintiff payment of $209,611.45 for charges owed for certain of its customers' purchases, but that those customers disputed the charges between October 2007 and December 2007. According to the complaint, pursuant to the "Full Recourse" and "Disputed Charge" provisions of the agreement, plaintiff conducted an investigation of the disputed charges and determined that, under the terms of the agreement, defendant, and not the customers, owed plaintiff the $209,611.45.

Prior to the commencement of this action (the "AmEx Travel action"), on or about January 2, 2009, American Express SE ("AmEx SE") commenced a related action (the "AmEx SE action"), by the same attorneys who commenced this action, against the same defendant, seeking the same relief, for what appears to be claims arising out of the same transactions (see American Express SE v Zalmen Reiss and Associates Inc., Index No. 55/09). On or about May 25, 2010, defendant Zalmen Reiss moved to dismiss the AmEx SE action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. On August 4, 2010, this court granted defendant's motion without prejudice and granted plaintiff leave to replead within thirty days of that date. On or about August 20, 2010, plaintiff filed a new complaint in the AmEx SE action, changing the name of the plaintiff from "American Express SE" to "American Express Travel Related Services Company, Inc.," the name of the plaintiff in the instant AmEx Travel action. In fact, the amended complaint filed in the AmEx SE action appears to be identical to the complaint filed in the instant action. Defendant subsequently moved to dismiss the action, and plaintiff cross-moved for summary judgment. On November 10, 2010, this court again dismissed the AmEx SE action without prejudice and denied plaintiff's cross motion for summary judgment. On or about November 30, 2010, plaintiff AmEx SE filed a notice of appeal of the court's denial of plaintiff's motion for summary judgment, which remains pending to date.^[FN1] Plaintiff then commenced this AmEx Travel action by filing the summons and complaint on or about January 25, 2011.

Defendant moves pursuant to CPLR 3211 (a) (7) to dismiss the action for failure to state a cause of action. When determining such motion, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . In assessing a motion under CPLR 3211 (a) (7) . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Leon v Martinez, 84 NY2d 83, 87-88 [1994], citing Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). [*3]

Defendant contends that the affidavit of David Elliot,^[FN2] who states he is an Operations Analyst employed by plaintiff, is factually implausible and contradictory to previous affidavits submitted in the prior action in which Elliot stated that he was an employee of AmEx SE, which is, according to Elliot, a subsidiary of plaintiff here and a separate corporate entity not involved in credit card operations. Although this court may freely consider plaintiff's affidavits when determining a motion to dismiss pursuant to CPLR 3211 (a) (7), and need not evaluate their evidentiary merit, in the instant action, plaintiff has adequately alleged the requisite elements of a breach of contract claim in its complaint alone. Therefore, the Elliot affidavit need not be referenced to remedy any defects in the complaint.

In order to withstand a motion to dismiss for failure to state a cause of action for breach of contract, a plaintiff must only allege the "existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages"(JP Morgan Chase v J.H. Elec. of New York, Inc., 69 AD3d 802, 803 [2d Dept 2010]). Even though plaintiff has never annexed a document executed by defendant evidencing a written contract between plaintiff and defendant, or provided the particulars of the execution of such document in its pleading, it is well-settled law that the plaintiff does not need to make any evidentiary showing to withstand a CPLR 3211 motion to dismiss (Rovello v Orofino Realty Co., 40 NY2d at 635 [1976]). Although plaintiff's complaint is sparsely pleaded, it adequately alleges that a contract exists between plaintiff and defendant, plaintiff has performed the contract, and defendant owes amounts under the contract, resulting in damage to the plaintiff of $209,611.45. Defendant's motion to dismiss pursuant to CPLR 3211 (a) (7) is denied.

Defendant also moves to dismiss pursuant to CPLR 3211 (a) (4), which permits dismissal if "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; the court need not dismiss upon this ground but may make such order as justice requires" (CPLR 3211 (a) (4). "Pursuant to CPLR 3211(a)(4), a court has broad discretion as to the disposition of an action when another action is pending and may dismiss one of the actions where there is a substantial identity of the parties and causes of action. To warrant dismissal, the two actions must be sufficiently similar and the relief sought must be the same or substantially the same. It is not necessary that the precise legal theories presented in the first proceeding also be presented in the second proceeding. Rather, it is necessary that both suits arise out of the same subject matter or series of alleged wrongs" (see Simonetti v Larson, 44 AD3d 1028, 1028-1029 [2d Dept 2007] (internal quotation marks and citations omitted)).

Applying this standard to this action, this court finds the AmEx SE action and this AmEx Travel action to be sufficiently similar to warrant dismissal. In the AmEx SE action, AmEx SE has appealed this court's denial of its cross motion for summary judgment. The amended complaint, dismissed on November 10, 2010, which will be examined on appeal, appears to be exactly the same complaint as the one filed in this AmEx Travel action. In fact, even though it is AmEx SE that is the appellant, both the amended complaint in the prior pending action and this [*4]complaint list AmEx Travel as the plaintiff. There can be no doubt that the identities of the parties are the same in the two actions, and the relief requested is identical.

Plaintiffs contend that, because the AmEx SE action was dismissed, the action is no longer pending, and they are entitled to bring a new action, claiming that "the mere pendency of an appeal does not detract from the force of the order of dismissal" (Coronado Dev. Corp. v Mellilken, 175 Misc. 1, 4 [Sup Ct, New York Count 1940), lv denied 262 AD 1019 [1st Dept 1941]). Plaintiff is mistaken. Coronado is inapposite as it was decided prior to the enactment of the CPLR. Moreover, the plaintiffs in the two actions at issue in Coronado were not found to be substantially identical.

CPLR 205 (a), which defines the termination of an action, states, in part:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . .may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

The Court of Appeals has found that termination of the action "occurs when appeals as of right are exhausted" (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 519-520 [2005], citing Lehman Bros., Inc. v. Hughes Hubbard & Reed, L.L.P., 92 NY2d 1014, 1016-1017 [1998]). Here, because this court's dismissal of the AmEx SE action was without prejudice, there was no final determination on the merits (Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY32 8, 13 [2008]). Thus, under CPLR 205 (a), plaintiff would ordinarily have been entitled to bring a new action within six months of entry of the November 10, 2010 order. However, because plaintiff has taken an appeal from this court's order denying plaintiff's cross-motion for summary judgment, and the appeal is still pending, the AmEx SE action is not terminated. Thus, this AmEx Travel action is subject to dismissal pursuant to CPLR 3211 (a) (4) as long as the AmEx SE action remains pending. However, exercising the discretion available under CPLR 3211 (a) (4), in light of the confusion as to the proper plaintiff, as evidenced by the Elliot affidavit, to avoid unnecessary duplication of litigation, this court will stay entry of an order dismissing the instant action for thirty days to permit plaintiff to withdraw the pending appeal and proceed in the instant case if it be so advised.

Defendant moves for sanctions pursuant to 22 NYCRR 130-1.1, which permits this court, in its discretion, to award a party reasonable attorneys' fees and actual costs incurred resulting from frivolous conduct, or to impose sanctions upon any party engaging in frivolous conduct. 22 NYCRR 130-1.1 (c) defines conduct as frivolous if: "1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; 2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or 3) it asserts material factual statements that are false." Defendant claims that plaintiff has exhibited a pattern of contumacious behavior by bringing three complaints seeking the same relief, forcing defendant to defend itself in costly and lengthy [*5]litigation unnecessarily. Defendant also claims that plaintiff has submitted three factually implausible affidavits from David Elliot over the course of both actions, stating in various affidavits that Elliot was an employee of both AmEx SE and AmEx Travel, which are, according to Elliot, two separate entities.

Although this court has found a prior action to be pending, defendant has failed to demonstrate that plaintiff's conduct has risen to the level of frivolous conduct within the meaning of 22 NYCRR 130-1.1 (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558 [2d Dept 2010]).Plaintiff has brought a new action while the prior action was still pending. However, the previous complaints were not dismissed with prejudice and thus, the mere fact that plaintiff has brought a new complaint cannot be used as evidence of frivolous conduct. Defendant also fails to demonstrate that plaintiff sought to delay the litigation or maliciously injure defendant. Lastly, plaintiff's submission of the allegedly conflicting Elliot affidavits are inconclusive to support a finding that plaintiff made material misstatements.

This constitutes the decision of the court.

EN T E R,

______________________

Carolyn E. Demarest

J. S. C.