| Lazides v P & G Enters. |
| 2009 NY Slip Op 00194 [58 AD3d 607] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Gus Lazides, Respondent, v P & G Enterprises et al.,Appellants. |
—[*1] Salzman & Salzman, LLP, Brooklyn, N.Y. (Richard Salzman of counsel), forrespondent.
In a consolidated action, inter alia, for a judgment declaring that a deed dated August 31,1993, transferring certain real property from the defendant P & G Enterprises to the defendantPeter Kouzounas, is null and void, the defendants appeal, as limited by their brief, from so muchof a judgment of the Supreme Court, Kings County (Partnow, J.), dated September 26, 2007, as,after a nonjury trial, declared the deed to be null and void, restored the subject property to thedefendant P & G Enterprises nunc pro tunc as of August 31, 1993, declared that the plaintiff andthe defendant Peter Kouzounas are currently equal partners in the defendant P & G Enterprises,declared that the deed is a mortgage lien securing a certain debt due and owing to the defendantPeter Kouzounas from the plaintiff, and declared that the plaintiff is entitled to an equitable rightof redemption with respect to that debt.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and itis declared that the subject deed is valid, that the plaintiff does not own one half of the subjectproperty as an equal partner in P & G Enterprises, that the deed is not a mortgage lien securing acertain debt due and owing to the defendant Peter Kouzounas from the plaintiff, and that theplaintiff is not entitled to an equitable right of redemption with respect to that debt.
The plaintiff Gus Lazides and the defendant Peter Kouzounas were co-equal partners in thedefendant P & G Enterprises (hereinafter P & G), which they formed by written partnershipagreement in 1989 for the sole purpose of purchasing two parcels of property in Brooklyn in thename of the partnership (hereinafter the property). Around the same time, Lazides signed a leaseand rider whereby he agreed to rent certain other property from Kouzounas. The rider providedthat if [*2]Lazides failed to pay certain sums of money when due,Lazides's one-half interest in the property purchased through P & G would be assigned andtransferred to Kouzounas. Lazides breached his obligations under the lease and rider and in 1991Kouzounas commenced an action in Supreme Court, Queens County (hereinafter the 1991Action), seeking money damages and a judgment declaring him owner of Lazides's one-halfinterest in the property. A default judgment dated July 12, 1993 was issued against Lazides andin Kouzounas's favor, in the principal sum of $24,000, which was never vacated. Moreover, inaccordance with the Supreme Court's ruling during the inquest held in connection with the 1991Action, Lazides's one-half interest in the property was conveyed to Kouzounas from P & G bydeed dated August 31, 1993 (hereinafter the deed). In 2001 Lazides commenced an action(hereinafter Action No. 1) seeking monetary damages as well as an accounting with respect tothe partnership. Then, in 2002, Lazides commenced another action (hereinafter Action No. 2),inter alia, for a judgment declaring the deed null and void pursuant to Real Property andProceedings Law article 15 and Real Property Law § 320. In 2003, Lazides commenced athird action (hereafter Action No. 3), seeking similar relief as in Action No. 2. In Action No. 3Lazides sought, inter alia, a judgment declaring that the deed is null and void, that he owns onehalf of the subject property as a current equal partner in P & G, that the deed is a mortgage liensecuring the debt due and owing to Kouzounas under the lease and rider, and that he is entitled toan equitable right of redemption with respect to that debt. By order dated May 8, 2003, theSupreme Court, inter alia, granted the cross motion of Kouzounas and P & G to dismiss thecomplaint in Action No. 2. This Court later affirmed that order insofar as appealed from (see Lazides v Kouzounas, 7 AD3d676 [2004]). By order dated May 28, 2004, Action No. 1 and Action No. 3 wereconsolidated and later tried before the Supreme Court at a bench trial. At the end of the trial, thetrial court, inter alia, rejected Kouzounas's argument that the claims in the complaint from ActionNo. 3 must be dismissed on the ground that they were barred under the doctrine of res judicatabecause the same claims raised therein, namely, the authority to transfer Lazides's one-halfinterest in the property, were raised and decided against him in the 1991 Action. The trial courtdetermined that the doctrine of res judicata did not apply because Lazides did not litigate theclaims asserted in the 1991 Action due to his default.
On appeal, Kouzounas contends that the trial court's ruling with respect to res judicata waserroneous. We agree and reverse the judgment insofar as appealed from.
Pursuant to the doctrine of res judicata, or claim preclusion, a valid final judgment barsfuture actions between the same parties on the same cause of action (see Gramatan HomeInvs. Corp. v Lopez, 46 NY2d 481, 485 [1979]; Matter of Field Home-Holy Comforter vDeBuono, 238 AD2d 589 [1997]; cf. Parker v Blauvelt Volunteer Fire Co., 93 NY2d343, 347 [1999]). As a general rule, once a claim is brought to a final conclusion, all other claimsarising out of the same transaction or series of transactions are barred, even if based upondifferent theories or if seeking a different remedy (see O'Brien v City of Syracuse, 54NY2d 353, 357 [1981]). Thus, res judicata applies "to an order or judgment taken by defaultwhich has not been vacated, as well as to issues which were or could have been raised in theprior [action]" (Matter of Eagle Ins. Co. v Facey, 272 AD2d 399, 400 [2000]; see Matter of Allstate Ins. Co. vWilliams, 29 AD3d 688 [2006]). Since Lazides could have challenged Kouzounas'sauthority to transfer his one-half interest in the subject property in the context of the 1991Action, the doctrine of res judicata bars the claims asserted in the complaint in Action No. 3,which were based on his challenge to the propriety of the property transfer (see GramatanHome Invs. Corp. v Lopez, 46 NY2d at 485; Matter of Eagle Ins. Co. v Facey, 272AD2d at 400).
In light of our determination, we need not reach the defendants' remaining contentions.Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.