Grant v. Aurora Loan Serv.

• Decision Date: 25 October 2011
• Citation: 2011 N.Y. Slip Op. 07605,88 A.D.3d 949,932 N.Y.S.2d 74
• Parties: Philip GRANT, respondent,v.AURORA LOAN SERVICES, et al., appellants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 949
932 N.Y.S.2d 74
2011 N.Y. Slip Op. 07605

Philip GRANT, respondent,
v.
AURORA LOAN SERVICES, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 25, 2011.

[932 N.Y.S.2d 75]

White & McSpedon, P.C., New York, N.Y. (Joseph W. Sands of counsel), for appellants.Philip Grant, Brooklyn, N.Y., respondent pro se.DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[88 A.D.3d 949] In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated June 18, 2010, as denied those branches of their motion which were to dismiss the amended complaint pursuant to CPLR 3211(a)(5) and (7).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were to dismiss the amended complaint pursuant to CPLR 3211(a)(5) and (7) are granted.

“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action” ( Barbieri v. Bridge Funding, 5 A.D.3d 414, 415, 772 N.Y.S.2d 610; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269). Here, the causes of action alleging that the defendant Aurora Loan Services (hereinafter Aurora) wrongfully foreclosed on the subject property are barred [88 A.D.3d 950] by the doctrine of res judicata ( see Aurora Loan Servs. v. Grant, 88 A.D.3d 929, 931 N.Y.S.2d 523 [decided herewith]; Aurora Loan Servs. v. Grant, 70 A.D.3d 986, 893 N.Y.S.2d 898). Accordingly, the Supreme Court should have granted that branch of

[932 N.Y.S.2d 76]

the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss those causes of action.

The Supreme Court also should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the remaining causes of action, which allege that the plaintiff is entitled to proceeds of an insurance claim paid to Aurora. On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every...