Jewett Homes, Inc. v. Ciardiello

Appellate Division of the Supreme Court of New York

Jewett Homes, Inc. v. Ciardiello

39 A.D.2d 581, 332 N.Y.S.2d 10, 1972 N.Y. App. Div. LEXIS 4902

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

DecidedApril 17, 1972

StatusPublished

Cited by2 cases

This text of 39 A.D.2d 581 (Jewett Homes, Inc. v. Ciardiello) 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

Jewett Homes, Inc. v. Ciardiello, 39 A.D.2d 581, 332 N.Y.S.2d 10, 1972 N.Y. App. Div. LEXIS 4902 (N.Y. Ct. App. 1972).

Pincite

Opinion

In an action to set aside and rescind a conveyance or, in the alternative, to impress a constructive trust, the defendants appeal from an order of the Supreme Court, Richmond County, dated November 17, 1971, which denied their motion to dismiss the complaint on the ground that it is barred by the doctrine of res judicata. Order affirmed, with $10 costs and disbursements. Neither res judicata nor collateral estoppel may be applied since the court in the first action denied the plaintiffs herein the right to raise the claim as a defense to the first action. Further, since we are reversing the judgment in the first action (see Ciardiello v. Pugliese, 39 A D 2d 562) and ordering a new trial, there is no prior judgment on which to find that res judicata applies. In view of the nature of the defense sought to be raised in the first action and the cause of action sued on herein, we are of the view that the two actions should be consolidated for trial. Hopkins, Acting P. J., Martuscello, Christ, Brennan and Benjamin, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to set aside and rescind a conveyance or, in the alternative, to impress a constructive trust, the defendants appeal from an order of the Supreme Court, Richmond County, dated November 17, 1971, which denied their motion to dismiss the complaint on the ground that it is barred by the doctrine of res judicata. Order affirmed, with $10 costs and disbursements. Neither res judicata nor collateral estoppel may be applied since the court in the first action denied the plaintiffs herein the right to raise the claim as a defense to the first action. Further, since we are reversing the judgment in the first action (see Ciardiello v. Pugliese, 39 A D 2d 562) and ordering a new trial, there is no prior judgment on which to find that res judicata applies. In view of the nature of the defense sought to be raised in the first action and the cause of action sued on herein, we are of the view that the two actions should be consolidated for trial. Hopkins, Acting P. J., Martuscello, Christ, Brennan and Benjamin, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

39 A.D.2d 581, 332 N.Y.S.2d 10, 1972 N.Y. App. Div. LEXIS 4902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jewett-homes-inc-v-ciardiello-nyappdiv-1972.

Opinion

Related

Cite This Page — Counsel Stack