| Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC |
| 2009 NY Slip Op 00044 [58 AD3d 435] |
| January 8, 2009 |
| Appellate Division, First Department |
| Heritage Realty Advisors, LLC, et al.,Respondents, v Mohegan Hill Development, LLC, et al.,Appellants. |
—[*1] The Dweck Law Firm, LLP, New York (Jack S. Dweck and Corey Stark of counsel), forrespondents.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 16, 2007,which denied defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint,unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed.The Clerk is directed to enter judgment accordingly.
The dismissal in a prior Westchester County action, pursuant to CPLR 3211 (a) (1) and (7),of plaintiffs' breach of contract action as against defendant Mohegan Hill Development, LLC(MHD), bars the instant action for, inter alia, tortious interference with a contract and unjustenrichment, as to all defendants (see generally O'Brien v City of Syracuse, 54 NY2d 353,357 [1981]). Not only are the two actions based on the same transactions, but the dismissal of theprior action, to the extent that it found that MHD was not in existence at the time thecompensation agreements at issue were entered into, was not merely because of technicalpleading defects, but on the merits (see Lampert v Ambassador Factors Corp., 266 AD2d124 [1999]; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558-559 [1989]).Dismissal of this action as against the remaining defendants is warranted since they are in privitywith MHD (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]).Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.