Mercaz Gan Yisroel of Flatbush, Inc. v. Congregation Beth Bracha

Opinion

Mercaz Gan Yisroel of Flatbush, Inc. v Congregation Beth Bracha

2026 NY Slip Op 05096

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Mercaz Gan Yisroel of Flatbush, Inc., et al., appellants,

v

Congregation Beth Bracha and Yackob, Inc., et al., respondents, et al., defendants, et al., nominal defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2023-04002, (Index No. 510040/19)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Deborah A. Dowling

Susan Quirk, JJ.

Levi Huebner & Associates, P.C., Brooklyn, NY, for appellants.

Law Office of Alan J. Sasson, P.C., Brooklyn, NY, for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 to determine claims to real property and for related declaratory and injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Rupert V. Barry, J.), dated February 8, 2023. The order denied the plaintiffs' motion to extend a notice of pendency and granted the motion of the defendants Congregation Beth Bracha and Yackob, Inc., David Thause, Samuel Ani, Saul Chazon, Noreen Ani, David Ani, Meira Josovich, Gennadi Josovich, Jonathan Tauzowicz, Irene Tauzowicz, and Liora Thause to cancel the notice of pendency.

ORDERED that the order is affirmed, with costs.

In 2019, the plaintiffs commenced this action, inter alia, pursuant to RPAPL article 15 to determine claims to certain real property located in Brooklyn (hereinafter the subject property) and for related declaratory and injunctive relief, alleging, among other things, that they were unjustly divested of their ownership interest in the subject property by certain of the defendants. At the same time this action was commenced, the plaintiffs filed a notice of pendency against the subject property. However, in 2018, the Civil Court, Kings County, upon the plaintiffs' default, entered a final judgment of eviction in favor of the title owner of the subject property, Congregation Beth Bracha and Yackob, Inc. (hereinafter Congregation Beth), and against the plaintiffs, awarding Congregation Beth possession of the subject property as owner and landlord thereof, which said judgment was never vacated or appealed from by the plaintiffs.

In June 2022, the plaintiffs moved to extend the notice of pendency. Congregation Beth, David Thause, Samuel Ani, Saul Chazon, Noreen Ani, David Ani, Meira Josovich, Gennadi Josovich, Jonathan Tauzowicz, Irene Tauzowicz, and Liora Thause (hereinafter collectively the defendants) opposed the plaintiffs' motion and moved to cancel the notice of pendency, contending, inter alia, that any claims by the plaintiffs of beneficial ownership or title to the subject property had abated in view of the final judgment of eviction. The plaintiffs opposed the defendants' motion. In an order dated February 8, 2023, the Supreme Court denied the plaintiffs' motion and granted the defendants' motion. The plaintiffs appeal.

CPLR 6501(a) provides that a notice of pendency may be filed where "the judgment demanded would affect the title to, incumbrance of, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property." However, under CPLR 6514(a), the court must direct the cancellation of a notice of pendency if, among other things, "the action has been settled, discontinued or abated." "Under the common law, the abatement of an action is the entire overthrow or destruction of the action, which results when the defendant pleads a matter that defeats the action, either for the time being or permanently. An action which has abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains" (Nastasi v Nastasi, 26 AD3d 32, 40 [internal quotation marks omitted]).

"Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Alarcon v Henry, 235 AD3d 706, 707 [internal quotation marks omitted]; see Altman v Orseck, 235 AD3d 818; Schwarz v Schwarz, 150 AD3d 915). While the doctrine of res judicata does not apply where a prior dismissal is not on the merits (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d 815, 817), "a default judgment is a judgment on the merits" (Alarcon v Henry, 235 AD3d at 707 [internal quotation marks omitted]; see Matter of Wheeler v Trifera, LLC, 209 AD3d 862, 864). Thus, "[t]he doctrine of res judicata is applicable to a judgment taken by default which has not been vacated, as well as to defenses raised in the prior action or which, though not raised, could have been" (Robbins v Growney, 229 AD2d 356, 357 [citation omitted]). Further, under New York's transactional approach, once a claim is finally determined, all claims arising out of the same transaction or series of transactions are barred, even if based on different theories or seek a different remedy (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Schwarz v Schwarz, 150 AD3d at 917).

Here, the plaintiffs are foreclosed by the doctrine of res judicata from maintaining their current claim of beneficial ownership of the subject property, since the claim was litigated or could have been litigated as a defense in the prior Civil Court eviction proceeding (see Sky E., LLC v Franco, 204 AD3d 594, 595; Dresser v Bedford Gardens Co., 74 AD2d 561). Additionally, further litigation on the issue of ownership of the subject property is foreclosed by the doctrine of collateral estoppel based on the issues resolved in the prior Civil Court eviction proceeding (see Toscano v 4B's Realty VIII Southampton Brick & Tile, LLC, 84 AD3d 780, 781). Under these circumstances, therefore, the plaintiffs' unjust enrichment claims in this action insofar as asserted against the defendants concerning beneficial ownership of the subject property, and the plaintiffs' concomitant request for the imposition of a constructive trust, have abated within the meaning of CPLR 6514(a) (see Genaro Partners, Inc. v Somwaru, 200 AD3d 858). Accordingly, the Supreme Court correctly granted the defendants' motion to cancel the notice of pendency and denied the plaintiffs' motion to extend the notice of pendency.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court