83-17 Broadway Corp. v. Debcon Financial Services, Inc.

• Decision Date: 10 April 2007
• Docket Number: 2005-06675.
• Citation: 39 A.D.3d 583,2007 NY Slip Op 03093,835 N.Y.S.2d 602
• Parties: 83-17 BROADWAY CORP., Respondent, v. DEBCON FINANCIAL SERVICES, INC., et al., Defendants, and BRETT MORGAN, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 583

835 N.Y.S.2d 602

2007 NY Slip Op 03093

83-17 BROADWAY CORP., Respondent, v. DEBCON FINANCIAL SERVICES, INC., et al., Defendants, and BRETT MORGAN, LLC, Appellant.

2005-06675.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 10, 2007.

In an action, inter alia, to set aside the alleged fraudulent conveyance of certain real property, the defendant Brett Morgan, LLC, appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), dated May 5, 2005, as denied, in effect, with leave to renew in a related action, those branches of its cross motion which were (a) pursuant to CPLR 3211 (a) (5) and (7) to dismiss the first, second, and third causes of action insofar as asserted against it, (b) pursuant to CPLR 3211 (a) (5) and (7) to dismiss the fourth cause of action insofar as asserted against it to the extent that it seeks damages for the alleged fraudulent conveyance of real property and to set aside the alleged fraudulent conveyance of three parcels of real property located in Astoria, New York, which were the subject of an action entitled Debcon Financial Services, Inc. v 83-17 Broadway Corp., pending in the Supreme Court, Queens County, under index No. 9555/98, and (c) to cancel the notice of pendency filed against those parcels of real property located in Astoria, New York.

Ordered that the order is modified, on the law, by deleting the provision thereof denying, in effect, with leave to renew in a related action, those branches of the cross motion which were pursuant to CPLR 3211 (a) (5) to dismiss the first, second, and third causes of action insofar as asserted against the appellant, and pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar as asserted against the appellant to the extent it seeks damages for the alleged fraudulent conveyance of real property and to set aside the alleged fraudulent conveyance of three parcels of real property located in Astoria, New York, which were the subject of an action entitled Debcon Financial Services, Inc. v 83-17 Broadway Corp., pending in the Supreme Court, Queens County, under index No. 9555/98 and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs payable by the plaintiff.

That branch of the appellant's cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the first, second, and third causes of action insofar as asserted against it should have been granted. Under New York's transactional analysis approach to res judicata, "once a claim is brought to a final conclusion, all other claims ... are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see New Horizons Invs. v Marine Midland Bank, 248 AD2d 449 [1998]). Thus, "[a] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or which might have been litigated in the foreclosure action are concluded" (Gray v Bankers Trust Co. of Albany, N.A., 82 AD2d 168, 170-171 [1981]; see NAB Asset Venture IV, LLP v Orangeburg Equities, 19 AD3d 565 [2005]; New Horizons Invs. v Marine Midland Bank, supra; Ghartey v Bank of Baltimore, 243 AD2d 538 [1997]). Furthermore, a judgment by default which has not been vacated is conclusive for res judicata purposes (see Rosendale v Citibank, 262 AD2d 628 [1999]; Silverman v Leucadia, Inc., 156 AD2d 442 [1989]; Rizzo v Ippolito, 137 AD2d 511 [1988]). Here, to the extent that the factual allegations set forth in the plaintiff's first three causes of action are directed against the appellant, they concern the validity of the mortgages which...