| Nachum v Ezagui |
| 2011 NY Slip Op 03560 [83 AD3d 1017] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Haim Nachum et al., Respondents, v Freha Ezagui et al.,Appellants, et al., Defendants. |
—[*1]
In an action, inter alia, to recover damages for breach of contract and to compel specificperformance of two contracts for, in effect, the sale of real property, the defendants Freha Ezagui,Reina Baruch, also known as Reina Ezagui, Eliyahu Ezagui, Lefferts Homes, Inc., and Chaisom,Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, KingsCounty (Kramer, J.), dated September 21, 2009, as, upon renewal, adhered to the originaldetermination in an order of the same court dated January 2, 2008, which, in effect, denied theirmotion for summary judgment dismissing the complaint insofar as asserted against them and, ineffect, searched the record and awarded summary judgment to the plaintiffs on the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly, in effect, searched the record and awarded summary judgmentto the plaintiffs on the complaint insofar as asserted against the appellants based on a priorarbitration decision. "Under the doctrine of collateral estoppel, a party is precluded fromrelitigating an issue which has been previously decided against him in a prior proceeding wherehe [or she] had a full and fair opportunity to litigate such issue" (Luscher v Arrua, 21AD3d 1005, 1007 [2005]; see Westchester County Correction Officers Benevolent Assn., Inc.v County of Westchester, 65 AD3d 1226, 1227 [2009]; Franklin Dev. Co., Inc. v AtlanticMut. Ins. Co., 60 AD3d 897, 899 [2009]). "The two elements that must be satisfied to invokethe doctrine of collateral estoppel are that (1) the identical issue was decided in the prior actionand is decisive in the present action, and (2) the party to be precluded from relitigating the issuehad a full and fair opportunity to contest the prior issue" (Luscher v Arrua, 21 AD3d at1007; see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US1096 [2002]; Westchester County Correction Officers Benevolent Assn., Inc. v County ofWestchester, 65 AD3d at 1227; Franklin Dev. Co., Inc. v Atlantic Mut. Ins. Co., 60AD3d at 899). The party seeking to invoke the doctrine of collateral estoppel "bears the burdenof establishing that the identical issue was necessarily decided in the prior action, and 'the partyto be estopped bears the burden of demonstrating the absence of a full and fair opportunity tocontest the prior determination' " (Leung v Suffolk Plate Glass Co., Inc., 78 AD3d 663,663-664 [2010], quoting Mahler v Campagna, 60 AD3d 1009, 1011 [2009]).[*2]
Here, the evidence submitted by the plaintiffsdemonstrated, prima facie, that the identical issues raised by them in this action were necessarilydecided in the prior arbitration decisions dated October 31, 2002, and December 19, 2002. Theappellants failed to submit any evidence, upon renewal, sufficient to raise a triable issue of fact asto the identity of issues, or any evidence showing that they lacked a full and fair opportunity tolitigate those issues in connection with the prior arbitration (see Matter of Gooshaw v City ofOgdensburg, 67 AD3d 1288, 1290-1291 [2009]; Comprehensive Med. Care of N.Y., P.C.v Hausknecht, 55 AD3d 777, 778 [2008]; Laramie Springtree Corp. v Equity ResidentialProps. Trust, 38 AD3d 850, 851-852 [2007]; see also Matter of Lockitt v Booker, 80AD3d 700 [2011]; Wallenstein v Cohen, 45 AD3d 674 [2007]). Accordingly, theSupreme Court properly, upon renewal, adhered to its original determination, in effect, searchingthe record and awarding summary judgment to the plaintiffs on the complaint insofar as assertedagainst the appellants based on that prior arbitration award and, in effect, denying the appellants'motion for summary judgment dismissing the complaint insofar as asserted against them. Skelos,J.P., Leventhal, Austin and Miller, JJ., concur. [Prior Case History: 25 Misc 3d 1203(A),2009 NY Slip Op 51960(U).]