| Douglas Elliman, LLC v Bergere |
| 2012 NY Slip Op 06009 [98 AD3d 642] |
| August 22, 2012 |
| Appellate Division, Second Department |
| Douglas Elliman, LLC, et al., Appellants, v Jane Bergere,Respondent. |
—[*1] Borenstein, McConnell & Calpin, P.C., Brooklyn, N.Y. (Abraham Borenstein and Alec R.Borenstein of counsel), for respondent.
In an action to recover damages for breach of contract, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), datedJuly 6, 2011, as granted that branch of the defendant's motion which was to dismiss the secondamended complaint pursuant to CPLR 3211 (a) (5) based on the doctrine of res judicata, anddenied their cross motion for leave to amend their second amended complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly determined that the plaintiffs' second amended complaintshould be dismissed pursuant to CPLR 3211 (a) (5) based on the doctrine of res judicata. "Underthe doctrine of res judicata, a disposition on the merits bars litigation between the same parties,or those in privity with them, of a cause of action arising out of the same transaction or series oftransactions as a cause of action that either was raised or could have been raised in the priorproceeding" (Abraham v Hermitage Ins.Co., 47 AD3d 855, 855 [2008]; see Pondview Corp. v Blatt, 95 AD3d 980, 980 [2012]; Matter of ADC Contr. & Constr., Inc. vTown of Southampton, 50 AD3d 1025, 1026 [2008]; see also Matter of Hunter, 4 NY3d260, 269 [2005]; Union St. Tower,LLC v Richmond, 84 AD3d 784, 785 [2011]). Res judicata thus "operates to precludethe renewal of issues actually litigated and resolved in a prior proceeding as well as claims fordifferent relief which arise out of the same factual grouping or transaction and which should haveor could have been resolved in the prior proceeding" (Union St. Tower, LLC vRichmond, 84 AD3d at 785, quoting Luscher v Arrua, 21 AD3d 1005, 1006-1007 [2005] [internalquotation marks omitted]). In determining "what factual grouping constitutes a transaction, thecourt must consider how the facts are related in time, space, origin, or motivation, whether theyform a convenient trial unit, and whether . . . their treatment as a unit conforms tothe parties expectations or business understanding or usage" (Union St. Tower, LLC vRichmond, 84 AD3d at 785, quoting Smith v Russell Sage Coll., 54 NY2d 185,192-193 [1981] [internal quotation marks omitted]). Here, the plaintiff Mary Zahoudanis is inprivity with the plaintiff Douglas Elliman, LLC, which could have raised the instant claim for abrokerage commission in a prior action commenced in the Supreme Court, New York County,entitled Douglas Elliman, LLC v Usdan, under index No. 602288/07. Since the claim fora brokerage fee in the [*2]instant action is grounded on the sametransaction or series of transactions as the prior action, the instant action is barred by the doctrineof res judicata.
The Supreme Court providently exercised its discretion in denying the plaintiffs' crossmotion for leave to amend their second amended complaint. " 'Leave to amend a pleading shouldbe freely given (see CPLR 3025 [b]), provided the amendment is not palpablyinsufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit'" (Clark v Clark, 93 AD3d 812,816 [2012], quoting Ortega v Bisogno &Meyerson, 2 AD3d 607, 609 [2003]). " 'A determination whether to grant such leave iswithin the Supreme Court's broad discretion, and the exercise of that discretion will not be lightlydisturbed' " (Tarek Youssef HassanSaleh v 5th Ave. Kings Fruit & Vegetables Corp., 92 AD3d 749, 750 [2012], quoting Peerless Ins. Co. v Micro Fibertek,Inc., 67 AD3d 978, 980 [2009]). Here, the proposed amendments were patently devoidof merit. Consequently, the Supreme Court properly denied the plaintiffs' cross motion.
Insofar as the defendant seeks the imposition of sanctions in connection with this appeal, wedecline that request (see Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1). Tothe extent that the defendant seeks review of the denial of her request for the imposition ofsanctions in the Supreme Court, the defendant did not file a notice of cross appeal from the orderand, therefore, the issue is not properly before us (see Lane v Smith, 84 AD3d 746, 746 [2011]).
In light of our determination, the plaintiffs' remaining contentions have been renderedacademic. Rivera, J.P., Eng, Lott and Miller, JJ., concur.