Zeidman v Chen

2024 NY Slip Op 31932(U)

June 4, 2024

Supreme Court, New York County

Docket Number: Index No. 650584/2024

Judge: Arlene P. Bluth

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 

13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32

were read on this motion to/for DISMISS .

Defendants’ motion to dismiss is granted for the reasons stated below. 

Background

This dispute concerns plaintiff’s attempt to sell his dental practice to defendants. 

Defendants point out that plaintiff has another pending case, also before the undersigned, arising 

out of the same dispute. They observe that in both cases, plaintiff brought claims for breach of 

contract, fraudulent inducement, for an accounting and for legal fees. Defendants contend that 

plaintiff was not permitted to simply bring a new action because he did not like the way the first 

action was handled. They argue that this case should therefore be dismissed pursuant to CPLR 

3211(a)(4) because there is a prior action pending. Defendants also seek sanctions. 

In opposition, plaintiff contends that this case contains different allegations. He 

maintains that the Dr. Chen defaulted under the terms of the parties’ promissory note in June 

2023 and so there is a new default. Plaintiff claims that his attorney attempted to get defendants 

to stipulate to the filing of an amended complaint in the other action but that defendants’ counsel 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14

Justice 

---------------------------------------------------------------------------------X INDEX NO. 650584/2024

 MOTION DATE 05/31/2024

 MOTION SEQ. NO. 001

DECISION + ORDER ON 

MOTION

ANDREW ZEIDMAN,

 Plaintiff, 

- v -

HARRISON L. CHEN, DDS, P.C.,HARRISON CHEN

 Defendants. 

---------------------------------------------------------------------------------X

INDEX NO. 650584/2024

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650584/2024 ZEIDMAN, ANDREW vs. HARRISON L. CHEN, DDS, P.C. ET AL

Motion No. 001

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refused to consent. Plaintiff also argues that the causes of action asserted in this case are against 

a corporate defendant which is not a party to the 2022 action. Plaintiff argues that, in any event, 

sanctions are not appropriate. 

In reply, defendants contend that plaintiff admits that the original parties in the first 

action are the same parties in this action. They also observe that plaintiff acknowledges that in 

that first action, plaintiff made a motion to dismiss defendants’ counterclaims on the ground that 

an entity did not exist (although plaintiff still sought affirmative relief against this non-existent 

entity). Defendants observe that the contracting parties have not changed between the time the 

first and second actions were each commenced and that this case is merely a second bite at the 

apple for plaintiff, who failed to properly appeal decisions in the first action. 

Discussion

A matter may be dismissed pursuant to CPLR 3211(a)(4) where “a pending action existed 

between the same parties for essentially the same relief and involving the same actionable 

wrong” (GSL Enterprises, Inc. v Citibank, N.A., 155 AD2d 247, 546 NYS2d 857 [1st Dept 1989]

[internal quotations and citation omitted]). 

Some context is required in this Court’s analysis. In the previous action, this Court noted 

that although plaintiff sued an entity called Harrison Chen, DDS, P.C. concerning the same 

contract at issue in this action, it turned out that the actual name of the corporate entity had Dr. 

Chen’s middle initial (Harrison L. Chen, DDS, P.C.) (NYSCEF Doc. No. 66 in Index Number 

656793/2022). The Court observed that plaintiff admitted that “neither the contracted party nor 

the named entity legally exist” (id.). However, rather than moving on to the merits, plaintiff 

simultaneously insisted that this non-existent entity was not permitted to assert counterclaims 

against him but that he could nevertheless assert affirmative claims against this non-existent 

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Motion No. 001

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entity. Obviously, that position was internally inconsistent and so the Court dismissed this entity 

from the case as there was no dispute it did not exist. 

As defendants point out, plaintiff did not move to reargue or pursue an appeal for that

decision. Nor did he move to amend his complaint to proceed on the merits of his breach of 

contract claims. Instead, plaintiff failed to oppose a default motion on Dr. Chen’s counterclaims 

and the Court granted that motion and ordered an inquest at time of trial (NYSCEF Doc. No. 80). 

Nearly a year later, plaintiff made a motion to renew the Court’s decision, a motion which the 

Court denied (NYSCEF Doc. No. 116). And according to defendants, plaintiff failed to timely 

perfect his appeal of the Court’s decision concerning the motion to renew (NYSCEF Doc. No. 

31, n 1). 

This context suggests that the instant action is a blatant attempt at judge shopping. 

Plaintiff apparently did not like the way in which the first action was proceeding so he 

commenced a separate case arising out of the same exact issue—the contract to sell the dental 

practice. Plaintiff even admits he tried to get defendants’ consent to file an amended complaint in 

the first action, but instead of making a motion for that relief in the first action he brought the 

instant case. That suggests that the cases are “for essentially the same relief.” 

Of course, a review of the complaints in each matter demonstrates that the Court should 

dismiss the second action pursuant to CPLR 3211(a)(4) as both concern the same exact subject 

matter. That the parties are not currently exactly the same is of no moment. Plaintiff had ample 

opportunity to amend his complaint in the first action to name the correct corporate entity (the 

one with Dr. Chen’s middle initial) and yet he decided to bring this case instead (and attempt to 

get it referred to the Commercial Division and therefore to a different judge than the 

undersigned). 

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Motion No. 001

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However, the Court declines to issue any sanctions. The Court views this action as new 

attorneys trying to clean up the fallout from the decisions in the related case. Lying and cheating 

are sanctionable but a poor or unsuccessful legal strategy is not. And so while plaintiff’s actions 

are confounding, it could be chalked up to counsel making an unpersuasive attempt to repackage

the claims at issue here; it is not wholly frivolous or so beyond the pale that sanctions are 

appropriate. 

Accordingly, it is hereby

ORDERED that defendants’ motion to dismiss is granted and the Clerk is directed to 

enter judgment accordingly in favor of defendants and against plaintiff along with costs and 

disbursements upon presentation of proper papers therefor. 

6/4/2024 $SIG$

DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

INDEX NO. 650584/2024

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