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Vets South, Inc. v. Levine

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


November 17, 2009

VETS SOUTH, INC., RESPONDENT,
v.
MITCHELL LEVINE, APPELLANT, AND TRI STAR SALES AND MARKETING, INC., DEFENDANT.

Appeal from a judgment of the District Court of Suffolk County, Fourth District (Richard I. Horowitz, J.), entered April 23, 2008. The judgment, insofar as appealed from, entered (1) upon an order dated September 8, 2006 which, inter alia, denied a motion by defendant Mitchell Levine to dismiss the complaint as against him and granted plaintiff's contested cross motion for partial summary judgment against defendants on the issue of liability, and (2) upon defendant Mitchell Levine's failure to appear at a trial limited to the issue of damages, awarded plaintiff damages in the principal sum of $10,292 and attorney's fees in the amount of $4,708 as against defendant Mitchell Levine.

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 printed Miscellaneous Reports.

PRESENT: MOLIA, J.P., NICOLAI and TANENBAUM, JJ.

ORDERED that the judgment, insofar as appealed from, is affirmed without costs.

In 2004, plaintiff brought a nonpayment summary proceeding against Mitchell Levine d/b/a Tri Star Sales to recover possession of certain premises and rent owed, pursuant to a commercial lease. In that proceeding, plaintiff obtained an award of possession upon Levine's failure to appear. Thereafter, plaintiff commenced this plenary action against Mitchell Levine individually and against the corporate defendant, Tri Star Sales and Marketing, Inc., for the rent due under the lease. Defendant Mitchell Levine moved to dismiss the action against him, arguing that defendant Tri Star Sales and Marketing, Inc., and not he, was the tenant on the lease. Plaintiff cross-moved for partial summary judgment on the issue of defendant Mitchell Levine's individual liability under the lease. By order entered September 8, 2006, the District Court denied defendant Levine's motion and granted plaintiff's cross motion for partial summary judgment, concluding that it was an implicit finding of the court in the nonpayment proceeding that defendant Mitchell Levine was the tenant of the premises under the lease, and that application of the principle of res judicata accordingly mandated a finding in the plenary action that Mitchell Levine individually was the tenant under the lease. On December 22, 2006, a motion by defendant Levine for reargument was denied. On April 23, 2008, a judgment was entered following defendant's failure to appear at the trial on the issue of damages, awarding plaintiff damages in the principal sum of $10,292 and attorney's fees in the amount of $4,708.

At the outset, we note that appellate review of the judgment, insofar as appealed from by defendant Mitchell Levine, is not precluded, as the judgment brings up for review the order entered September 8, 2006 (James v Powell, 19 NY2d 249, 256 n 3 [1967]; Credit-Based Asset Servicing & Securitization v Chaudry, 304 AD2d 708 [2003]). In our opinion, in light of the applicability of the doctrine of res judicata, we find no basis to disturb the September 8, 2006 order.

Following denial of the motion for reargument in this plenary action, defendant Levine sought to vacate the default final judgment in the summary proceeding, apparently claiming that the premises were vacant at the time process was allegedly effectuated upon him, and that service of process was improper. On February 15, 2007, the District Court denied defendant Levine's motion to vacate the default final judgment in the nonpayment proceeding, concluding that Levine had failed to establish a reasonable excuse for his default, and that, "[i]n any event, respondent has failed to establish the possibility of a meritorious defense as the lease, lease rider and amendment to lease between petitioner and Tri Star Sales were all executed by respondent in his individual capacity . . ." On March 20, 2007, Levine filed a notice of appeal from the order denying his motion to vacate the default final judgment, but, on July 24, 2007, that appeal was dismissed for failure to timely perfect. The dismissal of an appeal constitutes an adjudication of the merits with respect to all issues which could have been reviewed therein (see e.g. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; McGrath v D'Angio-McGrath, 42 AD3d 440 [2007]).

In view of the foregoing, the final judgment entered in the summary proceeding constitutes a binding adjudication that Levine, doing business as Tri Star Sales, was the tenant of the premises (Reich v Cochran, 151 NY 122 [1896]). This fact, being established in the summary proceeding, is established under principles of res judicata in the instant plenary action as well (see Ross Realty v V & A Fabricators, Inc., 42 AD3d 246 [2007]).

Accordingly, the judgment is affirmed.

Molia, J.P., Nicolai and Tanenbaum, JJ., concur.

20091117

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