| Hae Sheng Wang v Pao-Mei Wang |
| 2012 NY Slip Op 05141 [96 AD3d 1005] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Hae Sheng Wang et al., Appellants, v Pao-Mei Wang,Respondent. |
—[*1] Christopher Chen, Flushing, N.Y., for respondent.
In an action, inter alia, to set aside a transfer of real property, the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Queens County (Markey, J.),entered February 17, 2011, as denied those branches of their motion which were pursuant toCPLR 602 (b) to stay a proceeding entitled Matter of Wang v Wang, pending in the CivilCourt, Queens County, under index No. 62479/09, to remove it to the Supreme Court, QueensCounty, and to consolidate it with this action, and granted those branches of the defendant's crossmotion which were to dismiss the complaint pursuant to CPLR 3211 (a).
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof denying those branches of the plaintiffs' motion which werepursuant to CPLR 602 (b) to stay the proceeding entitled Matter of Wang v Wang,pending in the Civil Court, Queens County, under index No. 62479/09, to remove it to theSupreme Court, Queens County, and to consolidate it with this action, and substituting therefor aprovision granting those branches of the motion, and (2) by deleting the provision thereofgranting those branches of the defendant's cross motion which were to dismiss the third andfourth causes of action and substituting therefor a provision denying those branches of the crossmotion; as so modified, the order is affirmed insofar as appealed from, with costs to theplaintiffs.
In March 2000, Kuei Chen Tsao (hereinafter the decedent) transferred real property inFlushing (hereinafter the premises), which she held solely in her name, to the defendant, who isone of her daughters. The decedent died in September 2002. In 2006, the defendant allegedlysigned an agreement (hereinafter the agreement) to transfer five-sixths ownership of the premisesto her father and four of her siblings. No transfer took place. In April 2009, the defendantcommenced a holdover proceeding in the Civil Court of the City of New York, Queens County,seeking to evict two of her siblings from the premises. A month later, in May 2009, four of thedefendant's siblings and her father commenced an action in the Supreme Court, Queens County(hereinafter action No. 1). The complaint contained two causes of action, both of which sought toimpose a constructive trust on the premises. The first cause of action alleged that a constructivetrust arose from the transfer of the premises in 2000 and the second cause of action alleged that aconstructive trust arose from the agreement. By order dated October 15, 2009, the Supreme Courtgranted the defendant's motion to dismiss action No. 1, concluding that the first cause of actionwas barred by the statute [*2]of limitations and the second causeof action failed to state a cause of action. The plaintiffs did not appeal from that order.
In 2010, three of the plaintiffs in action No. 1 (the defendant's father and two of her siblings)commenced the instant action. In the first two causes of action, the defendant's father soughtdamages arising from the allegedly wrongful transfer of the premises in 2000. In the third causeof action, all of the plaintiffs sought to recover damages for the defendant's alleged breach of theagreement. In the fourth cause of action, the father alleged that the defendant was unjustlyenriched by her refusal to return money and personal property that belonged to the decedent andnow belong to the father. The plaintiffs moved, inter alia, pursuant to CPLR 602 (b) to stay theholdover proceeding, to remove it to the Supreme Court, Queens County, and to consolidate itwith this action. The defendant opposed the motion, and cross-moved, inter alia, pursuant toCPLR 3211 (a) to dismiss the complaint on the grounds, among other things, that the action wasbarred by res judicata and that the complaint failed to state a cause of action. The Supreme Courtdenied the plaintiffs' motion and granted those branches of the defendant's cross motion whichwere to dismiss the complaint.
"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on themerits exists from a prior action between the same parties involving the same subject matter. Therule applies not only to claims actually litigated but also to claims that could have been raised inthe prior litigation" (Matter ofHunter, 4 NY3d 260, 269 [2005]). The rationale for the doctrine is that a party who hasbeen given a full and fair opportunity to litigate a claim should not be allowed to do so again;allowing relitigation would undermine the interest of the community and the litigants in finality(see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Relitigation of claims alsoinhibits judicial economy (see Matter of Reilly v Reid, 45 NY2d 24, 28 [1978]). Thedismissal of a claim on the ground that the statute of limitations has run is a determination on themerits for res judicata purposes (see Smith v Russell Sage Coll., 54 NY2d 185, 194[1981]; Sosa v JP Morgan ChaseBank, 33 AD3d 609, 611 [2006]; Cold Spring Harbor Area Civic Assn. v Board ofZoning Appeals of Town of Huntington, 305 AD2d 444, 445 [2003]). Here, the plaintiffscould have raised, in action No. 1, their current causes of action arising out of the transfer of thepremises in 2000. The causes of action arose from the same operative facts and concern the sameproperty. Thus, the dismissal in action No. 1 of the causes of action arising from the 2000transfer as barred by the statute of limitations, is res judicata as to the plaintiffs' current causes ofaction arising out of that transfer (see Cold Spring Harbor Area Civic Assn. v Board ofZoning Appeals of Town of Huntington, 305 AD2d at 445). Consequently, the SupremeCourt properly granted that branch of the defendant's cross motion which was to dismiss the firstand second causes of action.
However, the Supreme Court should not have granted that branch of the defendant's crossmotion which was to dismiss the third cause of action, which sought to recover damages forbreach of contract based on the agreement. First, when the court granted the motion to dismissaction No. 1, it granted that branch of the motion which was to dismiss the equitable claimarising from the agreement, which was allegedly entered into in December 2006, on the groundthat it failed to state a cause of action, not on the ground that the statute of limitations had run.The granting of that branch of the motion which was to dismiss that cause of action was not adetermination on the merits. Consequently, res judicata does not bar the current cause of actionalleging breach of contract based on the agreement (see Plattsburgh Quarries v PalconIndus., 129 AD2d 844, 845 [1987]; Furia v Furia, 116 AD2d 694, 695 [1986]; cf.Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615 [1985]; Lampert v AmbassadorFactors Corp., 266 AD2d 124, 124-125 [1999]). Moreover, in evaluating the sufficiency ofpleadings in deciding a motion made under CPLR 3211 (a) (7), "the court must afford thepleadings a liberal construction, take the allegations of the complaint as true and provide plaintiffthe benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Matter of Haberman v Zoning Bd. ofAppeals of City of Long Beach, 94 AD3d 997 [2012]; East Hampton Union Free School Dist. vSandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]).The plaintiff's ultimate ability to prove those allegations is not relevant (see EBC I, Inc. vGoldman, Sachs & Co., 5 NY3d at 19; Knutt v Metro Intl., S.A., 91 AD3d 915, 915-916 [2012]). Here, thecomplaint adequately states a cause of action to recover damages for breach of contract based onthe agreement (see Cottone v SelectiveSurfaces, Inc., 68 AD3d 1038, 1039 [2009]; see generally 2-5 Corbin onContracts § 5.24; 2-7 Corbin on Contracts § 7.17; cf. Denburg v Parker ChapinFlattau & Klimpl, 82 NY2d 375 [1993]; Joab Commercial Laundries v Reeder, 159AD2d 489, 490-491 [1990]).
Additionally, the Supreme Court should not have granted that branch of the defendant's crossmotion which was to dismiss the fourth cause of action, which alleged unjust enrichment. Thatcause of action was not asserted in action No. 1, and it pertained to personal property, rather thanthe premises. The complaint adequately alleged a cause of action to recover for unjustenrichment (see Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 94AD3d at 997; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3dat 125; Anesthesia Assoc. of MountKisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 481 [2009]).
The plaintiffs' cause of action alleging breach of contract involves issues of law and fact incommon with those in the holdover proceeding pending in the Civil Court, and most of theparties are the same. "Where common questions of law or fact exist, a motion to consolidate[pursuant to CPLR 602 (b)] should be granted absent a showing of prejudice to a substantial rightby the party opposing the motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010 [2007]). Thedefendant did not make a showing that removal and consolidation would prejudice a substantialright. Therefore, those branches of the plaintiffs' motion which were to stay the holdoverproceeding, to remove it to the Supreme Court, Queens County, and to consolidate it with thisaction should have been granted (see CPLR 602 [b]; Kally v Mount Sinai Hosp.,44 AD3d at 1010-1011).
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andRoman, JJ., concur.