Gross v. Tannen

675 N.Y.S.2d 49 | N.Y. App. Div. | 1998

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered July 24, 1997, which, inter alia, denied plaintiffs motion for partial summary judgment as to liability against defendants Tannen and Cooper, and granted defendant Tannen’s cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

It is undisputed that plaintiffs cause of action for cancellation of an apartment lease and eviction against defendants Tannen and Cooper in a prior mortgage foreclosure action, and plaintiffs causes of action for money damages against the same defendants in this action, are based on the same facts, to wit, the obtaining of the lease in question through fraud, collusion and self-dealing. Nothing prevented plaintiff from joining his claims for damages against these defendants with his claim for equitable relief against them in the prior action (see, CPLR 103 [a]; 601 [a]). Accordingly, the order in the prior action granting plaintiffs motion for summary judgment on the lease cancellation and eviction cause of action constitutes res judicata barring the instant action seeking different relief based on the same transaction or series of transactions (see, O’Brien v City of Syracuse, 54 NY2d 353, 357). The order granting summary judgment against defendants Tannen and Cooper in the prior action brought the claim against them to a final conclusion (supra), and it is of no moment that the prior action continued as to other defendants. Concur — Milonas, J. P., Rosenberger, Nardelli, Wallach and Rubin, JJ.