Giroux v. Dunlop Tire Corp.

Mar 18, 2005
Versions:

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered October 7, 2004. The order denied defendant’s motion to dismiss the complaint and for sanctions.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is granted in part and the complaint is dismissed.

Memorandum: Plaintiff commenced this action to recover funds held in escrow that defendant allegedly wrongfully released to his client after assuring plaintiff, an unsecured creditor of the client, that the funds would be paid to plaintiff. Supreme Court erred in denying that part of defendant’s motion to dismiss the complaint on the ground of res judicata (see CPLR 3211 [a] [5]). Prior to the commencement of this action, plaintiff’s complaint in a separate action against defendant’s employer, alleging identical wrongdoing arising from the same transaction, was dismissed with prejudice. Thus, plaintiff is barred from bringing this action against defendant (see Con-Solid Contr. Co. v Litwak Dev. Corp., 298 AD2d 544, 546 [2002], lv denied 4 NY3d 701 [2004]; see also Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 8 [2000]; 303 Realty Corp. v Albert, 154 AD2d 590, 591 [1989]). Present—Green, J.P., Scudder, Gorski, Martoche and Pine, JJ.