Furia v. Furia

• Decision Date: 27 January 1986
• Citation: 498 N.Y.S.2d 12,116 A.D.2d 694
• Parties: Russell FURIA, et al., Respondents, v. Arnold FURIA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 12

498 N.Y.S.2d 12

116 A.D.2d 694

Russell FURIA, et al., Respondents, v. Arnold FURIA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 27, 1986.

William L. McCormick, Hauppauge, for appellant.

John F. Clennan, Centereach, for respondents.

Before LAZER, J.P., and GIBBONS, RUBIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Fierro, J.), dated July 2, 1984, as denied his motion pursuant to CPLR 3211(a)(5), (7) to dismiss the complaint.

Order affirmed insofar as appealed from, with costs.

The instant complaint is the seventh asserted against the defendant Arnold Furia based upon an alleged 1976 agreement between defendant and plaintiffs Russell Furia and Peter George. In the instant complaint plaintiffs allege that under the terms of the agreement, they provided certain services and materials during the period from July 1976 through December 1980 to develop and manufacture a certain bicycle device, and that despite repeated demands that defendant perform under the terms of the agreement, he breached it in December 1980, resulting in damages to each of the plaintiffs in the sum of $6,000.

In September 1981, separate actions were commenced against defendant by each of the plaintiffs in the District Court, Suffolk County. Upon defendant's motions the District Court, on November 20, 1981, by separate orders, dismissed each of the complaints on the ground of insufficiency of the pleadings under CPLR 3013.

In June 1982, the plaintiffs again commenced separate actions against defendant in the District Court, Suffolk County, which apparently were abandoned. However, in September 1982, the plaintiffs both served copies of these same separate complaints against defendant who then moved for a dismissal of the complaints on the grounds of res judicata, citing the November 20, 1981, orders of the same court, and for failure to state a cause of action under CPLR 3211(a)(7). Both actions were consolidated, and by District Court order dated December 1, 1982, the defendant's motions to dismiss the complaints were denied as moot and the actions were dismissed for failure to plead the required jurisdictional basis over a nonresident defendant under UDCA 404.

In or about September 1983, the plaintiffs joined in commencing the instant action against the defendant in the Supreme Court, Suffolk County. Defendant moved for a dismissal of the complaint on the grounds of res judicata and...