| Sanders v Grenadier Realty, Inc. |
| 2013 NY Slip Op 00122 [102 AD3d 460] |
| January 10, 2013 |
| Appellate Division, First Department |
| Lavern Sanders et al., Appellants, v GrenadierRealty, Inc., et al., Respondents, et al., Defendants. |
—[*1] Brody, Benard & Branch, LLP, New York (Mary Ellen O'Brien of counsel), forGrenadier Realty, Inc., respondent. Landman Corisi Ballaine & Ford P.C., New York (Sophia Ree of counsel), forStevenson Commons, Inc., respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered December 23, 2010,which dismissed the complaint on the grounds that it was barred by res judicata, anddeclined to permit plaintiffs leave to amend the complaint, unanimously affirmed,without costs.
Plaintiffs have abandoned their federal law claims on appeal (see Richbell Info.Servs. v Jupiter Partners, 309 AD2d 288, 308 [1st Dept 2003]). Even had plaintiffsnot abandoned those claims, they were properly barred on res judicata grounds, as theFederal District Court, the first forum in which plaintiffs pursued their action againstdefendants, dismissed their claims for failure to state a cause of action. This dismissalconstitutes a dismissal on the merits (see McKinney v City of New York, 78AD2d 884, 885 [2d Dept 1980]; see also Schneider v David, 197 AD2d 363 [1stDept 1993]).
Plaintiffs' state law claims were properly dismissed, but not for the reason stated bythe motion court, i.e., res judicata. Here, those claims were barred by the principle ofcollateral estoppel, since in dismissing plaintiffs' federal claims, the Federal DistrictCourt addressed issues identical to those raised by plaintiffs' state claims, despite havingdeclined to exercise jurisdiction over the state claims (see Browning Ave. RealtyCorp. v Rubin, 207 AD2d 263, 266 [1st Dept 1994], lv denied 85 NY2d 804[1995]; Pinnacle Consultants v Leucadia Natl. Corp., 94 NY2d 426, 432 [2000]).Further, even had these claims not been barred by either of the foregoing principles, theywould have been properly dismissed under CPLR 3211 (a) (7), as none of them stated aclaim upon which relief could be granted.[*2]
The IAS court properly declined to permitplaintiffs to amend their complaint, as any amendment would have been futile (seeRappaport v VV Publ. Corp., 223 AD2d 515, 516 [1st Dept 1996]).Concur—Friedman, J.P., Sweeny, Acosta, Abdus-Salaam and Manzanet-Daniels,JJ.