Matter of Kafka v. Meadowlark Gardens Owners, Inc.
| Decision Date | 21 November 2006 |
| Docket Number | 2005-08049. |
| Citation | 826 N.Y.S.2d 83,2006 NY Slip Op 08770,34 A.D.3d 676 |
| Parties | In the Matter of MALCOLM E. KAFKA, Appellant, v. MEADOWLARK GARDENS OWNERS, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the petition. The petitioner's argument that the 2004 stipulation of settlement entered into by the parties in a prior summary proceeding in the Civil Court of the City of New York, Queens County, Housing Part, should be vacated because at the time of its entry, the petitioner was not represented by an attorney and it was patently unfair to him, is not properly before this Court as it is raised for the first time on appeal (see Zafran v Zafran, 28 AD3d 752 [2006]). Additionally, contrary to the petitioner's contention, his shares in the respondent corporation were not being sold by the respondent pursuant to the Lien Law. Rather, the shares were noticed for sale pursuant to the terms of the proprietary lease following the lawful eviction of the petitioner from the subject apartment. Consequently, the petition failed to state a cause of action under Lien Law § 201-a and was properly denied.
Moreover, the petitioner's attempt to argue in this proceeding that he still had a right to sell the apartment at a private sale because of some defect in the underlying eviction proceeding or its stipulation of settlement is barred by the doctrine of res judicata. "The doctrine of res judicata `operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'" (Luscher v Arrua, 21 AD3d 1005, 1006-1007 [2005], quoting Koether v Generalow, 213 AD2d 379, 380 [1995]). The prior Housing Court orders leaving the judgment of possession and warrant of eviction intact are conclusive on all of the issues raised in the petition herein and are entitled to res judicata...
To continue reading
Request your trial
-
L.G. v. C.G.G.
...and which should have or could have been resolved in the prior proceeding" (Matter of Kafka v. Meadowlark Gardens Owners, Inc., 34 A.D.3d 676, 677, 826 N.Y.S.2d 83 [2d Dept 2006] [internal quotation marks omitted] ). "[A] party is not free to remain silent in an action in which he [or she] ......
-
In re Express Scripts, Inc. PBM Litig.
...resolved in the prior proceeding ( see Mahler v. Campagna, 60 A.D.3d 1009, 1011, 876 N.Y.S.2d 143; Matter of Kafka v. Meadowlark Gardens Owners, Inc., 34 A.D.3d 676, 677, 826 N.Y.S.2d 83; Luscher v. Arrua, 21 A.D.3d 1005, 1006-1007, 801 N.Y.S.2d 379). Here, the Supreme Court properly determ......
-
Codrington v. Wendell Terrace Owners Corp.
...to the Appellate Term, and is not properly before this Court ( see [988 N.Y.S.2d 239]Matter of Kafka v. Meadowlark Gardens Owners, Inc., 34 A.D.3d 676, 826 N.Y.S.2d 83;Nong Yaw Trakansook v. 39 Wood Realty Corp., 18 A.D.3d 633, 796 N.Y.S.2d 367;Toriola v. Kahen, 300 A.D.2d 650, 752 N.Y.S.2d......
-
Pilgrim v. Pantorilla
...the Pilgrims (see Mahler v. Campagna, 60 A.D.3d 1009, 1011, 876 N.Y.S.2d 143 ; Matter of Kafka v. Meadowlark Gardens Owners, Inc., 34 A.D.3d 676, 677, 826 N.Y.S.2d 83 ; Luscher v. Arrua, 21 A.D.3d 1005, 1006–1007, 801 N.Y.S.2d 379 ). A motion to dismiss a cause of action for declaratory rel......