Mark v. Comcast Cable Communications, Inc.

Appellate Division of the Supreme Court of New York

Mark v. Comcast Cable Communications, Inc.

48 A.D.3d 338, 851 N.Y.S.2d 542

Appellate Division of the Supreme Court of the State of New York·Decided February 26, 2008·Published

Opinion

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 24, 2006, dismissing the complaint pursuant to an order which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The alleged fraudulent scheme is not larger in scope than the issues determined in the prior action (see Burbrooke Mfg. Co., Inc. v St. George Textile Corp., 283 App Div 640, 641 [1954]; compare e.g. Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 218 [1975]; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 88-89 [2000]). All of the issues raised by plaintiff in this action were raised and determined in the prior action. Plaintiff simply offers newly discovered evidence to address the same issues, namely, the validity of the merger agreement between two companies of which plaintiff was a principal, and the issuance of shares of stock to defendants. Accordingly, plaintiffs remedy is a motion pursuant to CPLR 5015 (a) (2) and (3) addressed to the court that issued the judgment dismissing the prior action. In view of the foregoing, we do not address the parties’ substantive arguments. Concur&emdash;Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ. [See 2006 NY Slip Op 30269(U).]

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Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 24, 2006, dismissing the complaint pursuant to an order which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The alleged fraudulent scheme is not larger in scope than the issues determined in the prior action (see Burbrooke Mfg. Co., Inc. v St. George Textile Corp., 283 App Div 640, 641 [1954]; compare e.g. Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 218 [1975]; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 88-89 [2000]). All of the issues raised by plaintiff in this action were raised and determined in the prior action. Plaintiff simply offers newly discovered evidence to address the same issues, namely, the validity of the merger agreement between two companies of which plaintiff was a principal, and the issuance of shares of stock to defendants. Accordingly, plaintiffs remedy is a motion pursuant to CPLR 5015 (a) (2) and (3) addressed to the court that issued the judgment dismissing the prior action. In view of the foregoing, we do not address the parties’ substantive arguments. Concur&emdash;Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ. [See 2006 NY Slip Op 30269(U).]

Mark v. Comcast Cable Communications, Inc., 48 A.D.3d 338, 851 N.Y.S.2d 542 (N.Y. Ct. App. 2008).

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48 A.D.3d 338 (Mark v. Comcast Cable Communications, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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