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Million Gold Realty Co. v S.E. & K. Corp.


8.3.2.3.V2 Million Gold Realty Co., Inc. v. S.E. & K. Corp.
N.Y.A.D. 1 Dept.,2004.

Supreme Court, Appellate Division, First Department, New York.
MILLION GOLD REALTY CO., INC., Plaintiff-Appellant, v.
S.E. & K. CORP., Defendant-Respondent. Action No. 1.
Million Gold Realty Co., Inc., Plaintiff-Appellant, v.
S.E. & K. Corp., et al., Defendants-Respondents. Action No. 2.
Million Gold Realty Co., Inc., Plaintiff-Appellant, v.
S.E. & K. Corp., et al., Defendants-Respondents. Action No. 3. Feb. 19, 2004.

Background: Action was brought against landowners seeking specific performance of right of first refusal. The Supreme Court, New York County, Paula Omansky, J., granted landowners’ motions for summary judgment, and plaintiff appealed.

Holding: The Supreme Court, Appellate Division, held that dismissal of prior action seeking to enjoin landowners’ sale of property to third party, barred, on ground of res judicata, subsequent action seeking specific performance of right of first refusal.
Affirmed.

West Headnotes

Judgment 228 585(2)

228 Judgment

228XIII Merger and Bar of Causes of Action and Defenses

228XIII(B) Causes of Action and Defenses Merged, Barred, or Concluded

228k585 Identity of Cause of Action in General

228k585(2) k. What Constitutes Identical Causes. Most Cited Cases

Dismissal of prior action brought by alleged holder of right of first refusal, seeking to enjoin landowners’ sale of property to third party, barred, on ground of res judicata, holder’s subsequent action seeking specific performance of right of first refusal; first action established landowners’ right to enter into the contract with the third party, while subsequent action, arising out of the same transaction, sought to destroy that right and sought to raise issues that could have been raised in prior action.

**272Robin Nelson Wolfe, for Plaintiff-Appellant. Adam Leitman Bailey, for Defendants-Respondents.

SAXE, J.P., LERNER, FRIEDMAN, MARLOW, JJ.

*197 Order, Supreme Court, New York County (Paula Omansky, J.), entered June 14, 2002, which granted defendants’ motions for summary judgment dismissing Action No. 3 (Index No. 605898/01), unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December 4, 2001, which granted defendants’ motion for summary judgment dismissing Action No. 2 (Index No. 605656/00), unanimously dismissed as abandoned, without costs.

Plaintiff, who claims a right of first refusal to purchase certain real property owned by defendants, claimed in Action No. 2 that defendants’ contract of sale with a third party should be enjoined as fraudulent since the third party has no assets. The IAS court dismissed Action No. 2 for lack of proof as to the third party’s lack of means to meet the contract. In Action No. 3, which seeks specific performance of plaintiff’s right of first refusal, plaintiff alleges that there were material differences between defendants’ contract with the third party and the contract defendants forwarded to plaintiff when plaintiff exercised its right of first refusal, that defendants failed to provide plaintiff with a legible copy of the contract between them, and that defendants refused plaintiff’s request to certify the authenticity of their contract with the third party. The IAS court dismissed Action No. 3 as barred by collateral estoppel. We concur that Action No. 3 should be dismissed, albeit on the ground of res judicata. Action No. 2 established defendants’ right to enter into the contract with the third party; Action No. 3, arising out of the same transaction, seeks to destroy that right; and no reason appears why the issues plaintiff seeks to raise in Action No. 3 could not have been raised in Action No. 2 (see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306-307, 165 N.E. 456;Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647). We have considered and rejected plaintiff’s other arguments.

N.Y.A.D. 1 Dept.,2004.
Million Gold Realty Co., Inc. v. S.E. & K. Corp.
4 A.D.3d 196, 772 N.Y.S.2d 271, 2004 N.Y. Slip Op. 01119 END OF DOCUMENT

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS