Marshall v. Stark

285 A.D.2d 585, 728 N.Y.S.2d 382, 2001 N.Y. App. Div. LEXIS 7570

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered May 23, 2000, as denied their motion for leave to serve an amended complaint.

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

The Supreme Court properly denied the plaintiffs’ motion for leave to serve an amended complaint repleading six of seven causes of action dismissed in 1995. The six causes of action were dismissed in 1995 on the ground that they were premature and that an accounting had to occur first. Thereafter, the Supreme Court dismissed the complaint in its entirety, determining that the claim for an accounting had been waived, since the plaintiff Gordon Marshall had asserted certain rights under an October 1991 settlement agreement in a subsequent Federal action, and was thereby estopped from claiming that the agreement was fraudulently induced. This determination was affirmed by decision and order of this Court (see, Marshall v Stark, 276 AD2d 601, 603). In light of the broad release provision contained in the October 1991 settlement agreement and the Supreme Court’s prior determinations, the plaintiffs’ motion for leave to serve an amended complaint was properly denied (see, Mosberg v National Prop. Analyst, 217 AD2d 482, 483; Mergler v Crystal Props. Assocs., 179 AD2d 177, 178). Altman, J. P., H. Miller, Smith and Cozier, JJ., concur.