Hoffer v. Bank of Am., N.A.

• Decision Date: 10 February 2016
• Citation: Hoffer v. Bank of Am., N.A., 136 A.D.3d 750, 25 N.Y.S.3d 279 (N.Y. App. Div. 2016)
• Parties: Erik HOFFER, et al., appellants, v. BANK OF AMERICA, N.A., respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 750

25 N.Y.S.3d 279

Erik HOFFER, et al., appellants,

v.BANK OF AMERICA, N.A., respondent.

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

Feb. 10, 2016.

Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Kathleen A. Daly and Constantine A. Despotakis of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, to recover damages for misappropriation of funds and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Troia, J.), dated June 23, 2014, as granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and denied that branch of their cross motion which was for relief pursuant to CPLR 5222(c).

ORDERED that the order is affirmed insofar as appealed from, with costs.

A judgment was entered in favor of the plaintiffs against two named debtors (hereinafter the judgment debtors) in a prior federal action. On or about June 6, 2011, the plaintiffs, as judgment creditors, served a restraining notice pursuant to CPLR 5222 (hereinafter the restraining notice) on a local branch of the defendant Bank of America, N.A. (hereinafter the Bank), as garnishee and holder of the judgment debtors' assets.

Several months later, the plaintiffs commenced a turnover proceeding by order to show cause seeking the turnover of bank account funds, including additional account funds that were neither specified within the body of the restraining notice nor held in the name of either judgment debtor. In an order dated November 22, 2011, the Supreme Court (McMahon, J.) granted the petition only to the extent of directing the Bank to turn over those funds held pursuant to the restraining notice in the accounts of one of the named judgment debtors. The remainder of the relief sought by the plaintiffs was denied.

Subsequently, the plaintiffs commenced this action against the Bank, alleging three causes of action. The first cause of action alleged misappropriation of funds due and owing to them as judgment creditors, the second cause of action alleged fraud and deceit, and the third cause of action alleged equitable fraud. The Bank moved pursuant to CPLR 3211(a) to dismiss the complaint asserting, inter alia, that the action was barred by the doctrines of res judicata and collateral estoppel. The plaintiffs cross-moved, among other things, for relief pursuant to CPLR 5222(c).

In the order appealed from, the Supreme Court (Troia, J.) granted the Bank's motion and denied the plaintiffs' cross motion. The plaintiffs appeal, as limited by their brief, from so much of the order as granted the Bank's motion to dismiss the complaint and denied that branch of their cross motion which was for relief pursuant to CPLR 5222(c).

" ‘[T]he general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently re-litigating any questions that were necessarily decided therein’ " (Toscano v. 4B's Realty VIII Southampton Brick & Tile, LLC, 84 A.D.3d 780, 780, 921 N.Y.S.2d 882, quoting Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13, 862 N.Y.S.2d 316, 892 N.E.2d 380 ). "Under New York's transactional approach to res judicata, ‘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’ " (Toscano v. 4B's Realty VIII Southampton Brick & Tile, LLC, 84 A.D.3d at 780, 921 N.Y.S.2d 882, quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ).

Here, all the causes of action asserted in the complaint were litigated or could have been litigated in the prior proceeding and, therefore, are foreclosed by the doctrine of res judicata (see Bayer v. City of New York, 115 A.D.3d 897, 899, 983 N.Y.S.2d 61 ; Toscano v. 4B's Realty VIII Southampton Brick & Tile, LLC, 84 A.D.3d at 781, 921 N.Y.S.2d 882 ; Sandhu v. Mercy Med. Ctr., 54 A.D.3d 928, 928, 864 N.Y.S.2d 124 ; Timoney v. Newmark & Co. Real Estate, Inc., 36 A.D.3d 686, 686–687, 828 N.Y.S.2d 183 ; Fogel v. Oelmann, 7 A.D.3d 485, 486, 776 N.Y.S.2d 76 ).

In any event, the plaintiffs' claims are also barred by the doctrine of collateral estoppel, which "bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action,...