| See Why Gerard, LLC v Gramro Entertainment Corp. |
| 2012 NY Slip Op 02550 [94 AD3d 1205] |
| April 5, 2012 |
| Appellate Division, Third Department |
| See Why Gerard, LLC, Appellant, v Gramro EntertainmentCorporation, Doing Business as The Comedy Works, et al.,Respondents. |
—[*1] Waite & Associates, P.C., Guilderland (Stephen J. Waite of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Devine, J.), entered December 28,2010 in Albany County, which, among other things, granted defendants' motion to dismiss thecomplaint.
In December 2003, defendant Gramro Entertainment Corporation (hereinafter defendant)entered into a 61-month lease for banquet hall space located in the DeWitt Clinton building inthe City of Albany. Defendants Thomas J. Nicchi and Thomas V. Nicchi guaranteed the lease.The building was subsequently sold to plaintiff and defendant's lease was assigned to plaintiff.Plaintiff offered to pay defendant to vacate the premises so that it could convert the building intoa hotel. Defendant declined and plaintiff thereafter commenced a series of legal proceedings inan effort to evict defendant and/or terminate the lease agreement. All of these matters werewithdrawn or dismissed for various reasons. In July 2010, plaintiff commenced this actionseeking, as relevant here, damages resulting from defendants' occupation of the premises.Supreme Court granted, with prejudice, defendants' subsequent motion to dismiss the complaintpursuant to CPLR 3211 (a) (5). Plaintiff now appeals and we affirm.
It is well settled that the doctrine of collateral estoppel bars a party from relitigating an issuethat has already been decided against it (see Buechel v Bain, 97 NY2d 295, 303[2001], cert denied 535 US 1096 [2002]; Kedik v Kedik, 86 AD3d 766, 767 [2011]; Matter of Frontier Ins. [*2]Co., 73 AD3d 36, 41 [2010]). Moreover, as a general rule,future litigation between parties arising from the same transaction is precluded following a validfinal judgment in previous actions, even if a new action is based upon different theories or seeksa different remedy (see Matter of Joseyv Goord, 9 NY3d 386, 389-390 [2007]; Parker v Blauvelt Volunteer Fire Co., 93NY2d 343, 347 [1999]; O'Connor vDemarest, 74 AD3d 1522, 1523-1524 [2010]).
In the instant action, plaintiff alleged, among other things, that defendants were unjustlyenriched by their alleged occupation of the premises beyond the lease's termination date, thatdefendants converted plaintiff's personal property, that plaintiff was entitled to recover theamount of any utility charges beyond the reasonable amount provided for in the lease and thatplaintiff was entitled to a money judgment against the Nicchis based upon their guarantee of thelease. However, plaintiff previously asserted before Albany City Court that, among other things,defendant had failed to abide by the terms of the lease by failing to make the required rentpayments and operating a banquet facility and a commercial kitchen, and causing plaintiff toincur "unreasonable expenses" for basic utilities. Notably, City Court (Stiglmeier, J.) conducted afull trial based on these and other issues in a previous eviction proceeding and determined thatdefendant timely and properly tendered rent payments from December 2007 through March2008. City Court also found that further attempts by defendant to pay rent were rendered futile byplaintiff's clear intention to no longer accept payments and rejected plaintiff's argument thatdefendant used the premises for purposes other than those set forth in the lease. In a subsequenteviction proceeding, City Court found that defendant had properly renewed its lease with plaintifffor a five-year term beginning in January 2009 and determined that plaintiff's demands to recoverrent were procedurally defective.
The complaint here sets forth virtually identical causes of action as some of those previouslylitigated in and decided by City Court. Thus, plaintiff is estopped from relitigating them inSupreme Court.[FN*]To the extent that the instant complaint does raise a new issue with regard to the Nicchis' liabilityas guarantors of the lease, such claim is insufficient to prevent dismissal of the complaint.Inasmuch as defendant was found to have fully complied with the terms of the lease, thecondition precedent to compelling the Nicchis to remit payment on defendant's behalf has notoccurred. Thus, Supreme Court properly dismissed the complaint on the basis that plaintiff wascollaterally estopped from relitigating these same issues against defendants. Finally, to the extentthat plaintiff asserts new allegations of defendant's breach of different provisions of the leaseduring the same time period encompassed by its previous actions against defendants, suchallegations are also precluded by the doctrine of res judicata as they could have been raised in theprior litigation (see Matter of Josey v Goord, 9 NY3d at 389-390; UBS Sec. LLC v Highland Capital Mgt.,L.P., 86 AD3d 469, 474 [2011]).
Plaintiff's remaining contentions have been considered and are unavailing.
Mercure, A.P.J., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: Contrary to plaintiff'scontention, this determination does not prevent it from bringing a proper proceeding to recoverunpaid rent.