Creative Bath Products, Inc. v. Connecticut General Life Insurance

173 A.D.2d 400

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered April 26, 1990, which denied defendants’ motion to dismiss plaintiffs’ complaint on the ground that it was barred by res judicata, and imposed costs and sanctions against defendants on the ground that the motion was frivolous, unanimously affirmed, with costs.

Plaintiffs filed an amended complaint in federal court virtually identical to the instant complaint, except that it contained, in addition to causes of action sounding in fraud and misrepresentation, a claim under the Racketeer Influenced and Corrupt Organization Act (RICO; 18 USC § 1961 et seq.). Upon dismissal of the federal action, in its entirety, plaintiffs commenced the instant State action on their fraud and misrepresentation claims.

The District Court, upon dismissing plaintiffs’ RICO claim, noted that when a federal claim is dismissed prior to trial any pendent State claim should likewise be dismissed. It is clear that the federal court declined to exercise pendent jurisdiction over the State claims and that it made no determination on the merits with respect to those claims. (Evans v Rothschild Unterberg, Towbin, 131 AD2d 278.) Accordingly, defendants’ motion, based upon the doctrine of res judicata was properly denied. Furthermore, we agree that defendants’ motion was so completely without merit as to be frivolous within the meaning of 22 NYCRR 130-1.1 (c). (Nolan & Co. v Daly, 170 AD2d 320.) Concur—Ellerin, J. P., Wallach, Kupferman, Asch and Kassal, JJ.