| O'Connor v Demarest |
| 2010 NY Slip Op 04899 [74 AD3d 1522] |
| June 10, 2010 |
| Appellate Division, Third Department |
| Robert E. O'Connor, Respondent, v Timothy M. Demarest et al.,Appellants. |
—[*1] Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Jonathon B. Tingley of counsel), forMaaike Demarest Kuen, appellant. Francis J. Roche, Hudson, for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (McGrath, J.), entered July 16, 2009in Columbia County, which denied defendants' motions to dismiss the complaint.
In July 2003, defendants agreed, as part of the settlement of litigation involving real propertyin the Town of Ancram, Columbia County, to convey an easement to plaintiff and also toconstruct thereon, within a set period of time, a driveway that complied with the pertinentmunicipal requirements. When the driveway was not constructed within the specified timeperiod, plaintiff commenced an action in November 2005 seeking specific performance. OnApril 23, 2007, the parties entered into an oral stipulation on the record (later reduced to an orderand judgment entered in June 2007) which, among other things, required defendants to completethe driveway and obtain any municipal approvals by June 8, 2007. Also on April 23, 2007,plaintiff contracted to sell his property, but the agreement had a cancellation provision in theevent the driveway construction and municipal approvals thereof were not completed by July 2,2007.
Although the parties disagree about the date when the construction was completed, it isundisputed that required municipal approvals were not provided until July 9, 2007. Prior thereto,[*2]plaintiff had made an application via order to show cause tohold defendants in contempt and, significantly, on July 3, 2007, the individuals who hadcontracted to purchase plaintiff's property exercised the cancellation provision. Supreme Court(Donohue, J.) eventually denied plaintiff's motion seeking to hold defendants in contempt.
In November 2008, plaintiff commenced the current action against defendants allegingdamages arising from the cancelled real estate contract and asserting causes of action for breachof contract, prima facie tort, fraud, and tortious interference with the contract. Defendants, whohad divorced in August 2005, made separate motions to dismiss pursuant to CPLR 3211.Supreme Court (McGrath, J.) denied the motions and defendants now each appeal.
We consider first defendant Timothy M. Demarest's contention that the 2008 action shouldhave been dismissed pursuant to CPLR 3211 (a) (4) upon the ground that there was anotheraction involving the underlying circumstances already pending between the parties. "Courtsenjoy broad discretion when considering an application to dismiss an action on the ground thatanother action is pending between the same parties dealing with a similar issue" (Caudill vMcGreevy, 299 AD2d 626, 627 [2002] [citation omitted]; see Whitney v Whitney,57 NY2d 731, 732 [1982]; Mid-State Precast Sys. v Corbetta Constr. Co., 133 AD2d959, 960 [1987]). The 2007 settlement of the specific performance action commenced byplaintiff in 2005 provided that, in the event defendants failed to complete the driveway andobtain municipal approval by June 8, 2007, the 2005 action would reopen and plaintiff would beentitled to amend his complaint to assert additional causes of action. While plaintiff could havepursued his current claims within the context of a reopened and amended 2005 action, we areunpersuaded that Supreme Court abused its discretion in permitting the claims to instead beasserted in the 2008 action.
Both defendants assert that the current action is barred by res judicata since the 2005 actionallegedly arose out of the same transaction. "Under New York's transactional approach to [resjudicata], 'once a claim is brought to a final conclusion, all other claims arising out of the sametransaction or series of transactions are barred, even if based upon different theories or if seekinga different remedy' " (Matter of Josey vGoord, 9 NY3d 386, 389-390 [2007], quoting O'Brien v City of Syracuse, 54NY2d 353, 357 [1981]). Determining whether claims are part of the same transaction involves a"pragmatic test . . . analyzing whether the facts are related in time, space, origin, ormotivation, whether they form a convenient trial unit, and whether their treatment as a unitconforms to the parties' expectations or business understanding or usage" (Xiao Yang Chen v Fischer, 6 NY3d94, 100-101 [2005] [internal quotation marks and citations omitted]). The thrust of thecurrent action is aimed at damages purportedly arising from the real estate contract that wascancelled allegedly because of defendants' failure to meet deadlines regarding the driveway. Atthe time of the settlement of the 2005 action, facts essential to the current claim had notoccurred. Similarly, when plaintiff initiated the contempt motion, the real estate contract had notyet been cancelled. Under the circumstances, we agree with Supreme Court that res judicata isnot a bar to the current action (see generally Matter of Reilly v Reid, 45 NY2d 24, 28-29[1978]).
Defendant Maaike Demarest Kuen argues that the complaint fails to state a cause of actionas to her because the property settlement agreement between Demarest and her in August 2005as part of their divorce gave Demarest ownership and responsibility for the subject real property.There is no recorded deed or other document in the record that would have provided notice in2005 that Kuen had transferred all her ownership interest. Moreover, at the on-the-[*3]record stipulation in April 2007, counsel entered into the settlementterms on behalf of both Demarest and Kuen. While Kuen may have a viable cross claim againstDemarest, this record does not support summary dismissal of the current action as to her.
Kuen further contends that the complaint should be dismissed because the allegations arefacially insufficient to support a cognizable legal theory (see generally CPLR 3211 [a][7]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). This argument was not properly setforth before Supreme Court and, accordingly, is not preserved for our review (see Goodspeed v Adirondack Med.Ctr., 43 AD3d 597, 598 [2007]). To the extent this contention may have merit, it can beadvanced in a summary judgment motion after issue is joined by all parties and any necessarydisclosure is completed.
Spain, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.