Million Gold Realty Co. v. S.E. & K. Corp.

Appellate Division of the Supreme Court of New York

Million Gold Realty Co. v. S.E. & K. Corp.

4 A.D.3d 196, 772 N.Y.S.2d 271, 2004 N.Y. App. Div. LEXIS 1797

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

DecidedFebruary 19, 2004

StatusPublished

Cited by1 cases

This text of 4 A.D.3d 196 (Million Gold Realty Co. v. S.E. & K. Corp.) 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

Million Gold Realty Co. v. S.E. & K. Corp., 4 A.D.3d 196, 772 N.Y.S.2d 271, 2004 N.Y. App. Div. LEXIS 1797 (N.Y. Ct. App. 2004).

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Opinion

[197]*197Order, Supreme Court, New York County (Paula Omansky, J.), entered June 14, 2002, which granted defendants’ motions for summary judgment dismissing Action No. 3 (Index No. 605898/01), unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December 4, 2001, which granted defendants’ motion for summary judgment dismissing Action No. 2 (Index No. 605656/00), unanimously dismissed as abandoned, without costs.

Plaintiff, who claims a right of first refusal to purchase certain real property owned by defendants, claimed in Action No. 2 that defendants’ contract of sale with a third party should be enjoined as fraudulent since the third party has no assets. The IAS court dismissed Action No. 2 for lack of proof as to the third party’s lack of means to meet the contract. In Action No. 3, which seeks specific performance of plaintiffs right of first refusal, plaintiff alleges that there were material differences between defendants’ contract with the third party and the contract defendants forwarded to plaintiff when plaintiff exercised its right of first refusal, that defendants failed to provide plaintiff with a legible copy of the contract between them, and that defendants refused plaintiffs request to certify the authenticity of their contract with the third party. The IAS court dismissed Action No. 3 as barred by collateral estoppel. We concur that Action No. 3 should be dismissed, albeit on the ground of res judicata. Action No. 2 established defendants’ right to enter into the contract with the third party; Action No. 3, arising out of the same transaction, seeks to destroy that right; and no reason appears why the issues plaintiff seeks to raise in Action No. 3 could not have been raised in Action No. 2 (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). We have considered and rejected plaintiff’s other arguments. Concur—Saxe, J.E, Lerner, Friedman and Marlow, JJ.

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[197]*197Order, Supreme Court, New York County (Paula Omansky, J.), entered June 14, 2002, which granted defendants’ motions for summary judgment dismissing Action No. 3 (Index No. 605898/01), unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December 4, 2001, which granted defendants’ motion for summary judgment dismissing Action No. 2 (Index No. 605656/00), unanimously dismissed as abandoned, without costs.

Plaintiff, who claims a right of first refusal to purchase certain real property owned by defendants, claimed in Action No. 2 that defendants’ contract of sale with a third party should be enjoined as fraudulent since the third party has no assets. The IAS court dismissed Action No. 2 for lack of proof as to the third party’s lack of means to meet the contract. In Action No. 3, which seeks specific performance of plaintiffs right of first refusal, plaintiff alleges that there were material differences between defendants’ contract with the third party and the contract defendants forwarded to plaintiff when plaintiff exercised its right of first refusal, that defendants failed to provide plaintiff with a legible copy of the contract between them, and that defendants refused plaintiffs request to certify the authenticity of their contract with the third party. The IAS court dismissed Action No. 3 as barred by collateral estoppel. We concur that Action No. 3 should be dismissed, albeit on the ground of res judicata. Action No. 2 established defendants’ right to enter into the contract with the third party; Action No. 3, arising out of the same transaction, seeks to destroy that right; and no reason appears why the issues plaintiff seeks to raise in Action No. 3 could not have been raised in Action No. 2 (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). We have considered and rejected plaintiff’s other arguments. Concur—Saxe, J.E, Lerner, Friedman and Marlow, JJ.

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4 A.D.3d 196, 772 N.Y.S.2d 271, 2004 N.Y. App. Div. LEXIS 1797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/million-gold-realty-co-v-se-k-corp-nyappdiv-2004.

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