| Matter of Ram v Hershowitz |
| 2010 NY Slip Op 06637 [76 AD3d 1022] |
| September 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Gil Ram, Appellant-Respondent, v MiriamHershowitz, Respondent-Appellant. |
—[*1] Thomas Torto, New York, N.Y., for respondent-appellant.
In a proceeding, in effect, pursuant to CPLR article 52 to enforce a money judgment by, interalia, imposing an equitable lien against certain real property, the petitioner appeals from so muchof an order of the Supreme Court, Kings County (Knipel, J.), dated September 23, 2009, as, ineffect, denied the petition and dismissed the proceeding, and Miriam Hershowitz cross-appealsfrom so much of the same order as denied that branch of her cross motion which was to enjointhe petitioner from instituting or maintaining any action or proceeding against her in which thepetitioner asserts any claim or cause of action for legal or equitable relief to apply to her personalor real property in satisfaction of a money judgment in favor of the petitioner against thedecedent Joseph Hershowitz, filed in the Civil Court of the City of New York, Kings County, onJune 10, 1999, under index No. 535/98, without prior court approval.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements;and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law and in theexercise of discretion, without costs or disbursements, that branch of the cross motion which wasto enjoin the petitioner from instituting or maintaining any action or proceeding against MiriamHershowitz in which the petitioner asserts any claim or cause of action for legal or equitablerelief to apply to her personal or real property in satisfaction of a money judgment in favor thepetitioner against the decedent Joseph Hershowitz, filed in the Civil Court of the City of NewYork, Kings County, on June 10, 1999, under index No. 535/98, without prior court approval, isgranted.
Since 2002, the petitioner has instituted several proceedings and actions in the SupremeCourt against Miriam Hershowitz (hereinafter Hershowitz), the widow of the judgment debtor, inconnection with a money judgment filed on June 10, 1999, in the Civil Court of the City of NewYork, Kings County. In each such proceeding or action, the petitioner alleged the sameunderlying transaction and facts, seeking to enforce the money judgment against personal and/orreal property owned solely by Hershowitz. Orders dismissing two such proceedings wereaffirmed by this Court on appeals (seeMatter of Fontani v Hershowitz, 12 AD3d 672 [2004]; Fontani v Hershowitz, 12 AD3d636).
Subsequent to those appeals, the petitioner commenced another enforcement [*2]proceeding in the Supreme Court, resulting in an order dated March9, 2009, denying the petition and dismissing the proceeding on the merits, after full considerationof the petitioner's cause of action to impose a constructive trust and equitable lien against certainreal property titled to Hershowitz. Alternatively, that order denied the petition on the ground thatit was barred by the doctrine of res judicata. The petitioner did not take an appeal from that order.Instead, the petitioner filed the petition in the instant proceeding, alleging the same underlyingfacts and seeking the same relief under the same cause of action.
Under New York's transactional approach to res judicata, "once a claim is brought to a finalconclusion, all other claims arising out of the same transaction or series of transactions arebarred, even if based upon different theories or if seeking a different remedy" (O'Brien v Cityof Syracuse, 54 NY2d 353, 357 [1981]; see Fontani v Hershowitz, 12 AD3d at 637).In the order appealed from, the Supreme Court properly, in effect, denied the petition anddismissed the proceeding on the ground of res judicata. The petitioner may not continue torelitigate this issue by initiating new proceedings and actions seeking the same relief based uponthe same factual allegations (see Matterof Segreto v Grannis, 70 AD3d 704, 705 [2010]). Under the circumstances of this case,given the petitioner's continued commencement of additional litigation despite numerous priordeterminations against him, Hershowitz was entitled to injunctive relief against the petitioner(see Matter of Manwani v Manwani, 286 AD2d 767, 768 [2001]; Murray v NationalBroadcasting Co., 214 AD2d 708, 709-710, 712 [1995]; Sassower v Signorelli, 99AD2d 358 [1984]). Dillon, J.P., Florio, Leventhal and Chambers, JJ., concur.