| Grant v Aurora Loan Servs. |
| 2011 NY Slip Op 07605 [88 AD3d 949] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Philip Grant, Respondent, v Aurora Loan Services et al.,Appellants. |
—[*1] Philip Grant, Brooklyn, N.Y., respondent pro se.
In an action, inter alia, to recover damages for breach of contract , the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.),dated June 18, 2010, as denied those branches of their motion which were to dismiss theamended complaint pursuant to CPLR 3211 (a) (5) and (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were to dismiss the amended complaint pursuant toCPLR 3211 (a) (5) and (7) are granted.
"Under the doctrine of res judicata, a disposition on the merits bars litigation between thesame parties or those in privity with them of a cause of action arising out of the same transactionor series of transactions as a cause of action that either was raised or could have been raised inthe prior action" (Barbieri v BridgeFunding, 5 AD3d 414, 415 [2004]; see Matter of Hunter, 4 NY3d 260, 269 [2005]). Here, the causes ofaction alleging that the defendant Aurora Loan Services (hereinafter Aurora) wrongfullyforeclosed on the subject property are barred by the doctrine of res judicata (see Aurora LoanServs., LLC v Grant, 88 AD3d 929 [2011] [decided herewith]; Aurora Loan Servs. v Grant, 70 AD3d986 [2010]). Accordingly, the Supreme Court should have granted that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss those causes of action.
The Supreme Court also should have granted that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the remaining causes of action, which allege thatthe plaintiff is entitled to proceeds of an insurance claim paid to Aurora. On a motion to dismissa complaint pursuant to CPLR 3211 (a) (7), the court must afford the complaint a liberalconstruction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefitof every favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However,"[w]here evidentiary material is submitted and considered on a motion to dismiss a complaintpursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment,the question becomes whether the plaintiff has a cause of action, not whether the plaintiff hasstated one and, unless it has been shown that a material fact as claimed by the plaintiff to be oneis not a fact at all and unless it can be said that no [*2]significantdispute exists regarding it, dismissal should not eventuate" (Rietschel v Maimonides Med. Ctr., 83 AD3d 810 [2011]; seeGuggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Fishberger v Voss, 51 AD3d 627,628 [2008]). Here, once the subject property fell into foreclosure and the plaintiff's hazardinsurance on the property lapsed, Aurora obtained its own hazard insurance through thedefendant Balboa Insurance Company (hereinafter Balboa) in order to protect its interest in themortgage. The defendants indisputably demonstrated through evidentiary material that theplaintiff's allegation that he was an additional insured under the policy was "not a fact at all"(Rietschel v Maimonides Med. Ctr., 83 AD3d at 810; see Guggenheimer vGinzburg, 43 NY2d at 275; Baron vGalasso, 83 AD3d 626, 628 [2011]; York Restoration Corp. v Solty's Constr., Inc., 79 AD3d 861, 862[2010]). Since the plaintiff's allegation that he was an additional insured under the policy was"not a fact at all," he does not have a cause of action to recover the proceeds of an insurancepayment made by Balboa to Aurora for use in repairing the property as a result of a fire, and hedoes not have a cause of action to recover the limits of that policy (see Guggenheimer vGinzburg, 43 NY2d at 274-275; Fishberger v Voss, 51 AD3d at 628).
The plaintiff's remaining contentions are without merit. Angiolillo, J.P., Dickerson,Chambers and Lott, JJ., concur.