Pedote v. STP Assocs., LLC

• Decision Date: 28 January 2015
• Docket Number: 2012-06997, Index No. 4729/12.
• Citation: 998 N.Y.S.2d 894 (Mem),124 A.D.3d 856,2015 N.Y. Slip Op. 00738
• Parties: Barbara PEDOTE, et al., appellants, v. STP ASSOCIATES, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 856
998 N.Y.S.2d 894 (Mem)
2015 N.Y. Slip Op. 00738

Barbara PEDOTE, et al., appellants
v.
STP ASSOCIATES, LLC, respondent.

2012-06997, Index No. 4729/12.

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

Jan. 28, 2015.

William V. Rapp, Scarborough, N.Y. (Moshe Mortner of counsel), for appellants.

Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (Jeffrey A. Miller of counsel), for respondent.

Opinion

124 A.D.3d 856

In an action for declaratory relief, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated July 23, 2012, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the third cause of action based upon the doctrine of res judicata.

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

“ ‘Under the doctrine of res judicata, a disposition on the

124 A.D.3d 857

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 proceeding’ ” (Douglas Elliman, LLC v. Bergere, 98 A.D.3d 642, 642–643, 949 N.Y.S.2d 766, quoting Abraham v. Hermitage Ins. Co., 47 A.D.3d 855, 855, 851 N.Y.S.2d 608 ). “Res judicata ‘thus 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’ ” (Douglas Elliman, LLC v. Bergere, 98 A.D.3d at 643, 949 N.Y.S.2d 766, quoting Union St. Tower, LLC v. Richmond, 84 A.D.3d 784, 785, 922 N.Y.S.2d 503 ; see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ).

The third cause of action...