Grossman v. New York Life Ins. Co.

• Decision Date: 27 December 2011
• Citation: 90 A.D.3d 990,935 N.Y.S.2d 643,2011 N.Y. Slip Op. 09593
• Parties: Israel GROSSMAN, et al., appellants, v. NEW YORK LIFE INSURANCE COMPANY, respondent(and a third-party action).
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09593

90 A.D.3d 990

935 N.Y.S.2d 643

Israel GROSSMAN, et al., appellants,

v.NEW YORK LIFE INSURANCE COMPANY, respondent(and a third-party action).

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

Dec. 27, 2011.

Jessica Sokol, New York, N.Y., for appellant Raphael Grossman, and Israel Grossman, Brooklyn, N.Y., pro se (one brief filed).

Pillsbury Winthrop Shaw Pittman LLP, New York, N.Y. (E. Leo Milonas, Maria T. Galeno, and Andrew C. Smith of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Demarest, J.), dated January 26, 2010, which granted the defendant's motion for summary judgment dismissing the complaint, (2), as limited by their brief, from so much of an order of the same court dated June 16, 2010, as denied their motion for leave to renew and reargue their opposition to the defendant's motion for summary judgment dismissing the complaint, and (3) from an order of the same court dated July 6, 2010, which granted the defendant's application to impose a sanction upon the plaintiff Israel Grossman, and directed that plaintiff to pay the sum of $10,000 to the Lawyers' Fund for Client Protection.

ORDERED that the order dated January 26, 2010, is affirmed; and it is further,

ORDERED that the appeal from so much of the order dated June 16, 2010, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 16, 2010, is affirmed insofar as reviewed; and it is further,

ORDERED that on the Court's own motion, the notice of appeal from the order dated July 6, 2010, is treated as an application for leave to appeal from that order, and leave to appeal is granted ( see CPLR 5701); and it is further,

ORDERED that the order dated July 6, 2010, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Israel Grossman (hereinafter Grossman) on the ground that it was barred by the doctrine of res judicata. “[U]nder the transactional approach adopted by New York in res judicata jurisprudence, ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’ ” ( Marinelli Assoc. v. Helmsley–Noyes Co., 265 A.D.2d 1, 5, 705 N.Y.S.2d 571, quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158). The defendant demonstrated its prima facie entitlement to judgment as a matter of law against Grossman by presenting evidence that the claims asserted by him in the instant action were barred by a prior final determination by an arbitration panel, which adjudicated claims arising out of the same transaction or series of transactions as the claims he asserts herein. In opposition, Grossman failed to raise a triable issue of fact.

The Supreme Court also properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff ...