Franklin-Hood v. 80th Street, LLC

Appellate Division of the Supreme Court of New York

Franklin-Hood v. 80th Street, LLC

138 A.D.3d 609, 28 N.Y.S.3d 864

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 2016

Docket925 152476/13

StatusPublished

This text of 138 A.D.3d 609 (Franklin-Hood v. 80th Street, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin-Hood v. 80th Street, LLC, 138 A.D.3d 609, 28 N.Y.S.3d 864 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered April 2, 2015, which denied the motion of defendant Weber Farhat Realty Management Inc. to dismiss the claims against it pursuant to CPLR 3211 and, in effect, denied as moot the conditional cross motion of defendant 80th Street I LLC (sued herein as 80th Street, LLC) to convert its cross claims to third-party claims, unanimously reversed, on the law, without costs, and both the motion and conditional cross motion granted.

Plaintiff’s claims against Weber are barred both by Executive Law § 297 (9) (see Horowitz v Aetna Life Ins., 148 AD2d 584, 585 [2d Dept 1989]) and res judicata (see Zarcone v Perry, 78 AD2d 70, 76, 78-79 [2d Dept 1980], affd 55 NY2d 782 [1981], cert denied 456 US 979 [1982]; see also O’Brien v City of Syracuse, 54 NY2d 353, 356-358 [1981]). With the dismissal of the complaint as against Weber, 80th Street’s cross claims against Weber should be converted into a third-party action (see e.g. Eddine v Federated Dept. Stores, Inc., 72 AD3d 487 [1st Dept 2010]).

Concur — Sweeny, J.P., Saxe, Moskowitz, Gische and Webber, JJ.

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Order, Supreme Court, New York County (Peter H. Moulton, J.), entered April 2, 2015, which denied the motion of defendant Weber Farhat Realty Management Inc. to dismiss the claims against it pursuant to CPLR 3211 and, in effect, denied as moot the conditional cross motion of defendant 80th Street I LLC (sued herein as 80th Street, LLC) to convert its cross claims to third-party claims, unanimously reversed, on the law, without costs, and both the motion and conditional cross motion granted.

Plaintiff’s claims against Weber are barred both by Executive Law § 297 (9) (see Horowitz v Aetna Life Ins., 148 AD2d 584, 585 [2d Dept 1989]) and res judicata (see Zarcone v Perry, 78 AD2d 70, 76, 78-79 [2d Dept 1980], affd 55 NY2d 782 [1981], cert denied 456 US 979 [1982]; see also O’Brien v City of Syracuse, 54 NY2d 353, 356-358 [1981]). With the dismissal of the complaint as against Weber, 80th Street’s cross claims against Weber should be converted into a third-party action (see e.g. Eddine v Federated Dept. Stores, Inc., 72 AD3d 487 [1st Dept 2010]).

Concur — Sweeny, J.P., Saxe, Moskowitz, Gische and Webber, JJ.

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Bluebook (online)

138 A.D.3d 609, 28 N.Y.S.3d 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-hood-v-80th-street-llc-nyappdiv-2016.

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