Pahmer v. Touche Ross & Co.

271 A.D.2d 371, 707 N.Y.S.2d 825, 2000 N.Y. App. Div. LEXIS 4567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered January 29, 1999, which, inter alia, granted defendants’ motion pursuant to CPLR 3211 to dismiss the complaint and denied plaintiffs’ cross motion for leave to file an amended complaint, unanimously affirmed, with costs.

The complaint in this action is predicated upon the same series of transactions and occurrences that formed the basis of a prior complaint previously brought by plaintiffs and dismissed on the merits in the Southern District of New York (see, Pahmer v Greenberg, 926 F Supp 287, affd sub nom. Shapiro v Cantor, 123 F3d 717). The present action, then, was properly dismissed by the IAS Court as barred by the doctrine of res judicata (see, Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; O’Brien v City of Syracuse, 54 NY2d 353, 357). Plaintiffs, in seeking to avoid the bar of res judicata, have failed to satisfy their burden of establishing that they were not afforded a full and fair opportunity to litigate their claims in the prior action (see, Parker v Blauvelt Volunteer Fire Co., supra, at 350), and have not provided a satisfactory explanation for their failure to submit the affidavit upon which they would now rely in a timely manner. Indeed, plaintiffs have not in this action raised any claims that were not or could not have been raised in the Federal lawsuit, nor have they demonstrated the existence of any evidence that could not have been made available to the District Court. It follows that plaintiffs’ cross motion for leave to amend their complaint was properly denied. Concur — Sullivan, P. J., Nardelli, Tom, Wallach and Saxe, JJ.