Birnbaum v. Goldenberg Consulting Group, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 28, 2018
• Docket: 2018 NYSlipOp 51012(U)
• Status: Published

Opinion

Murray Birnbaum, as Assignee, Plaintiff-Appellant,

against

Goldenberg Consulting Group, Inc., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Sabrina B. Kraus, J.), dated July 27, 2017, which granted defendant's motion to dismiss the complaint.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated July 27, 2017, affirmed, with $10 costs.

Civil Court properly dismissed the complaint on res judicata grounds. The instant action, like the small claims action brought by plaintiff, seeks damages for defendant's alleged failure to properly split a particular employment placement commission. That plaintiff now seeks greater damages than sought in the small claims action does not alter this conclusion (see Chapman v Faustin, 150 AD3d 647 [2017]). Nor is a contrary result required by plaintiff's claim that defendant rendered false testimony in the small claims action. A party who has lost a case as result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false testimony (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2009]). Plaintiff's remedy is limited to proceeding in the small claims court case where the alleged misconduct occurred (see Little Rest Twelve, Inc. v Zajic, 137 AD3d 540 [2016]) and a possible appeal from the judgment of that court (see Joseph v Citibank, 271 AD2d 358 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 28, 2018