Melnitzky v. Besobrasow

14 A.D.3d 395, 787 N.Y.S.2d 655, 2005 N.Y. App. Div. LEXIS 308

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Judith J. Gische, J.), entered November 26, 2003, which, to the extent appealed from, granted defendant’s motion to dismiss the complaint with prejudice, unanimously affirmed, without costs.

All issues and claims raised herein that were or could have been addressed in plaintiffs matrimonial action, particularly regarding the inventory of the safe deposit boxes, are barred, even if based on different theories or sought under a different remedy (see Ryan v New York Tel. Co., 62 NY2d 494 [1984]). Further, the claims of conversion, theft, damage to property, fraud, abuse of process, willful concealment and destruction of evidence, collusion, prima facie tort and request for an accounting have been raised and dismissed in previous litigation (e.g. Melnitzky v Melnitzky, 284 AD2d 240 [2001]; Melnitzky v LoPreto, 8 AD3d 4 [2004]). Plaintiffs remaining contention, that he has not received his equitable share of the contents of the safe deposit boxes, is not alleged in the complaint, and he has not established that this claim is ripe for judicial review. Concur—Saxe, J.P., Friedman, Sullivan, Nardelli and Williams, JJ.