James v. Arango

116 A.D.3d 1008, 983 N.Y.S.2d 902

Opinion

In an action, inter alla, to recover damages for fraud, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Lane, J.), dated May 16, 2012, as granted that branch of the motion of the defendant FFFC which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

We affirm the granting of that branch of the motion of the defendant FFFC which was for summary judgment dismissing the complaint insofar as asserted against it, but on grounds different from those relied upon by the Supreme Court (see Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 844 [2012]). The plaintiff commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court) which was based on the same nucleus of operative facts as the complaint in this action. In an order dated April 5, 2010, the District Court, inter alla, granted, on default, FFFC’s motion for summary judgment dismissing the complaint insofar as asserted against it. Based on that order, the doctrine of res judicata bars the plaintiff’s present action against FFFC (see Saud v Bank of N.Y., 929 F2d 916, 919 [2d Cir 1991]; Uzamere v Uzamere, 89 AD3d 1013 [2011]; Lazides v P & G Enters., 58 AD3d 607 [2009]; Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404-405 [2005]). Dillon, J.E, Hall, Cohen and Hinds-Radix, JJ., concur.