Rosen v. Kessler

Appellate Division of the Supreme Court of New York

Rosen v. Kessler

51 A.D.3d 761, 856 N.Y.S.2d 861

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

DecidedMay 13, 2008

StatusPublished

Cited by3 cases

This text of 51 A.D.3d 761 (Rosen v. Kessler) 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

Rosen v. Kessler, 51 A.D.3d 761, 856 N.Y.S.2d 861 (N.Y. Ct. App. 2008).

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Opinion

In an action, inter alia, to recover damages, in effect, for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 24, 2007, which granted the defendant’s motion pursuant to CFLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata.

Ordered that the order is affirmed, with costs.

The doctrine of res judicata precludes the instant action because, inter alia, it arises from the same transactions as a prior action (see Rosen v Watermill Dev. Corp., 1 AD3d 424 [2003]) and, given that New York does not recognize a separate cause of action to pierce the corporate veil (see Hart v Jassem, 43 AD3d 997, 998 [2007]; Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 15 AD3d 528, 529 [2005]), it differs from the prior action only in the theory of recovery (see generally Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 753 [2005]). Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by res judicata. Mastro, J.E, Skelos, Lifson and Leventhal, JJ., concur. [See 15 Misc 3d 1139(A), 2007 NY Slip Op 51055(U) (2007).]

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In an action, inter alia, to recover damages, in effect, for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 24, 2007, which granted the defendant’s motion pursuant to CFLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata.

Ordered that the order is affirmed, with costs.

The doctrine of res judicata precludes the instant action because, inter alia, it arises from the same transactions as a prior action (see Rosen v Watermill Dev. Corp., 1 AD3d 424 [2003]) and, given that New York does not recognize a separate cause of action to pierce the corporate veil (see Hart v Jassem, 43 AD3d 997, 998 [2007]; Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 15 AD3d 528, 529 [2005]), it differs from the prior action only in the theory of recovery (see generally Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 753 [2005]). Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by res judicata. Mastro, J.E, Skelos, Lifson and Leventhal, JJ., concur. [See 15 Misc 3d 1139(A), 2007 NY Slip Op 51055(U) (2007).]

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Bluebook (online)

51 A.D.3d 761, 856 N.Y.S.2d 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosen-v-kessler-nyappdiv-2008.

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