Rosen v. Kessler

May 13, 2008
Versions:51 A.D.3d 761
856 N.Y.S.2d 861

In an action, inter alia, to recover damages, in effect, for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 24, 2007, which granted the defendant‘s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata.

Ordered that the order is affirmed, with costs.

The doctrine of res judicata precludes the instant action because, inter alia, it arises from the same transactions as a prior action (see Rosen v Watermill Dev. Corp., 1 AD3d 424 [2003]) and, given that New York does not recognize a separate cause of action to pierce the corporate veil (see Hart v Jassem, 43 AD3d 997, 998 [2007]; Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 15 AD3d 528, 529 [2005]), it differs from the prior action only in the theory of recovery (see generally Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 753 [2005]). Accordingly, the Supreme Court properly granted the defendant‘s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by res judicata. Mastro, J.P., Skelos, Lifson and Leventhal, JJ., concur. [See 15 Misc 3d 1139(A), 2007 NY Slip Op 51055(U) (2007).]