NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 8, 2009
HERITAGE REALTY ADVISORS, LLC, ET AL., PLAINTIFFS-RESPONDENTS,
MOHEGAN HILL DEVELOPMENT, LLC, ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 16, 2007, which denied defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint, unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Sweeny, Catterson, Moskowitz, JJ.
The dismissal in a prior Westchester County action, pursuant to CPLR 3211(a)(1) and (7), of plaintiffs' breach of contract action as against defendant Mohegan Hill Development, LLC (MHD), bars the instant action for, inter alia, tortious interference with a contract and unjust enrichment, as to all defendants (see generally O'Brien v City of Syracuse, 54 NY2d 353, 357 ). Not only are the two actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely because of technical pleading defects, but on the merits (see Lampert v Ambassador Factors Corp., 266 AD2d 124 ; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558-559 ). Dismissal of this action as against the remaining defendants is warranted since they are in privity with MHD (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
© 1992-2009 VersusLaw Inc.