| Pesa v Dayan |
| 2013 NY Slip Op 01390 [104 AD3d 662] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Mario A. Pesa et al., Appellants, v Mark Dayan etal., Respondents. |
—[*1] Naidich, Wurman, Birnbaum & Maday, LLP, Great Neck, N.Y. (Robert P. Johnsonof counsel), for respondents Mark Dayan, Yossi Toletano, and Southpoint, Inc. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino Faleyof counsel), for respondent Drew Lontos.
In an action, inter alia, to recover damages for fraudulent conveyance of realproperty, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County(Driscoll, J.), entered September 7, 2011, which granted that branch of the motion of thedefendant Drew Lontos which was pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against him, (2) a judgment of the same court entered September 20,2011, which, upon the order, is in favor of the defendant Drew Lontos and against themdismissing the complaint insofar as asserted against him, and (3) an order of the samecourt dated January 30, 2012, which granted that branch of the motion of the defendantsMark Dayan, Yossi Toletano, and Southpoint, Inc., which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
Ordered that the appeal from the order entered September 7, 2011, is dismissed; andit is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order dated January 30, 2012, is reversed, on the law, and thatbranch of the motion of the defendants Mark Dayan, Yossi Toletano, and Southpoint,Inc., which was to dismiss the complaint insofar as asserted against them is denied; and itis further,
Ordered that one bill of costs is awarded to the plaintiffs payable by the defendantsMark Dayan, Yossi Toletano, and Southpoint, Inc., and one bill of costs is awarded to thedefendant Drew Lontos payable by the plaintiffs.
The appeal from the intermediate order entered September 7, 2011, must bedismissed because the right of direct appeal therefrom terminated with the entry of thejudgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). Theissues raised on the appeal from the intermediate order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court should have denied thatbranch of the motion of the defendants Mark Dayan, Yossi Toletano, and Southpoint,Inc., which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar asasserted against them on the ground that the action was barred by the doctrine of resjudicata (see Vitarelle vVitarelle, 65 AD3d 1034, 1035 [2009]). "Under the doctrine of res judicata, adisposition on the merits bars litigation between the same parties, or those in privity withthem, of a cause of action arising out of the same transaction or series of transactions as acause of action that either was raised or could have been raised in the prior proceeding. . . Res judicata thus operates to preclude the renewal of issues actuallylitigated and resolved in a prior proceeding as well as claims for different relief whicharise out of the same factual grouping or transaction and which should have or couldhave been resolved in the prior proceeding" (Douglas Elliman, LLC v Bergere, 98 AD3d 642, 642-643[2012] [citations and internal quotation marks omitted]; see O'Brien v City ofSyracuse, 54 NY2d 353, 357 [1981]). Here, the causes of action interposed in thepresent action did not arise out of the same transaction or series of transactions as thecauses of action that were raised or could have been raised in the prior action.Consequently, the doctrine of res judicata does not bar this action. In addition, thedoctrine of collateral estoppel (see generally Parker v Blauvelt Volunteer FireCo., 93 NY2d 343, 349 [1999]) does not bar this action.
Similarly, the defendant Drew Lontos was not entitled to dismissal of the complaintinsofar as asserted against him pursuant to CPLR 3211 (a) (5), since the doctrines of resjudicata and collateral estoppel do not bar this action (see Vitarelle v Vitarelle,65 AD3d at 1035). However, Lontos correctly contends that the complaint was properlydismissed insofar as asserted against him on an alternate ground, namely, that it fails tostate a cause of action against him (see Federal Deposit Ins. Corp. v Porco, 75NY2d 840, 841-842 [1990]; Cahen-Vorburger v Vorburger, 41 AD3d 281, 282 [2007]).
The remaining contention of Dayan, Toletano, and Southpoint, Inc., is without merit.Skelos, J.P., Leventhal, Hall and Sgroi, JJ., concur. [Prior Case History: 2011 NYSlip Op 32400(U).]