Antonious v. Muhammad

8 F. App'x 78

• Court: Court of Appeals for the Second Circuit
• Decided: May 1, 2001
• Docket: No. 00-7662
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of said District Court be and hereby are AFFIRMED.

Plaintiffs-appellants Nashaat N. Antonious and Soheir F. Antonious timely appeal from judgments entered by the District Court on January 23, 1995 and April 28, 2000 that between them dismissed plaintiffs-appellants’ claims against all defendants-appellees. For the reasons stated below, we affirm the judgments of the District Court.

Plaintiffs-appellants initiated this action (“the federal action”) on April 29, 1991, and initiated another action (“the state action”) one week later in Supreme Court, New York County. The state action was removed to Supreme Court, Rockland County (“the state court”), and was subsequently dismissed by the state court — as to defendant-appellee Gribetz by order dated March 31, 1993, and as to the remaining defendants-appellees by order dated May 28, 1993. On the basis of the state court’s dismissal of the state action, defendants-appellees moved in the District Court for dismissal of the federal action as barred by res judicata. The District Court granted their motions.

On appeal, plaintiffs-appellants press one substantial argument — namely, that because the dismissal of the state court action recited that it was dismissed “with prejudice” and did not say “on the merits,” the New York law¹ doctrine of res judicata does not bar the federal action. We disagree for substantially the reasons stated by Judge Sprizzo in his thorough, well-reasoned opinions of January 5, 1995, see Antonious v. Muhammad, 873 F.Supp. 817 (S.D.N.Y.1995), and April 28, 2000, see Antonious v. Muhammad, 95 F.Supp.2d 156 (S.D.N.Y.2000). Accordingly, we affirm the judgments of the District Court.

We have considered plaintiffs-appellants’ remaining arguments and conclude that they are without merit.

For the reasons stated above, the judgments of the District Court are AFFIRMED.

1 . The parties briefs rely on New York preclusion law, and such “implied consent ... is sufficient to establish choice of law.” Tehran-Berkeley Civil & Envtl. Eng’rs v. Tippetts-Abbett-McCarthey-Stratton, 888 F.2d 239, 242 (2d Cir.1989)