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Lau v. Capital One Bank

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 30, 2009

GILBERT LAU, PLAINTIFF-APPELLANT,
v.
CAPITAL ONE BANK, ET AL., DEFENDANTS, FORSTER & GARBUS, ET AL., DEFENDANTS-RESPONDENTS.

Orders, Supreme Court, New York County (Marilyn Shafer, J.), entered October 30, 2008, which denied plaintiff's motion to transfer a related Civil Court action to Supreme Court and granted the motion of defendants Forster & Garbus, Ronald Forster, Mark Garbus and Brandi P. Klineberg to dismiss the amended complaint, unanimously affirmed, without costs.

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.

Mazzarelli, J.P., Saxe, DeGrasse, Abdus-Salaam, JJ.

104636/08

Plaintiff's claims against the defendants named in both the Civil Court and Supreme Court actions are barred by the doctrine of res judicata (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]), notwithstanding that some of the claims now asserted are based on different theories (see O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Plaintiff is also barred by the doctrine of collateral estoppel from re-litigating the issues decided in the Civil Court action against newly named parties, who were in privity with defendants in the prior Civil Court action (see Prospect Owners Corp. v Tudor Realty Servs. Corp., 260 AD2d 299 [1999]; Corto v Lefrak, 203 AD2d 94 [1994], lv dismissed 86 NY2d 774 [1995]). To the extent that any of plaintiff's claims are not otherwise barred, the amended complaint fails to state a cause of action against any of the defendants.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090630

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