Silverman v. Leucadia, Inc.

• Decision Date: 11 December 1989
• Citation: 156 A.D.2d 442,548 N.Y.S.2d 720
• Parties: Isaac SILVERMAN, Jr., et al., Appellants, v. LEUCADIA, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 720

548 N.Y.S.2d 720

156 A.D.2d 442

Isaac SILVERMAN, Jr., et al., Appellants, v. LEUCADIA, INC., Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 11, 1989.

Isaac Silverman, Jr., Albert Silverman, Sean Silverman, and Kathryn Silverman as trustee of David and Jennifer Silverman, Rye, appellants pro se (one brief filed).

Butler, Fitzgerald & Potter, New York City (Andrew W. Sidman, of counsel), for respondent.

Before BROWN, J.P., and LAWRENCE, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages sounding in fraud and other intentional wrongdoing, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Ruskin, J.), entered April 15, 1988, which granted the defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs are the five children of Isaac Silverman (hereafter Silverman) who owned certain properties in New York and Westchester Counties. Silverman was previously involved in numerous actions and proceedings involving this defendant in State and Federal courts. In addition, he has made numerous related applications in State and Federal courts. In these actions and proceedings, Silverman alleged, inter alia, that the defendant fraudulently induced him to file a voluntary bankruptcy petition, misrepresented the amounts it was owed and committed various other frauds in connection with loans and mortgages involving Silverman's properties. These issues were fully, fairly and definitively litigated in these prior actions and proceedings. In fact, Silverman was directed by an order of the Supreme Court, New York County, dated March 20, 1984, to cease and desist from "commencing or prosecuting any action or proceeding alleging the same or similar claims as are alleged in the complaint, without prior permission of the court, on notice to the defendant." In the present action brought by Silverman's five children the complaint contains allegations of fraud and wrongdoing on the part of the defendant with regard to Silverman's properties which are similar to those made in the previous actions and proceedings.

The Supreme Court dismissed the instant action on the ground that it was barred by the doctrines of res judicata and collateral estoppel. We agree.

"[A] valid final judgment bars future actions between the same parties on the 'same cause of action' (see, e.g., 50 CJS, Judgments § 598)" (Matter of Reilly v. Reid, 45 N.Y.2d 24, 27, 407 N.Y.S.2d 645, 379 N.E.2d 172), whether the judgment was a primary claim or a counterclaim (see, El Sawah v. Penfield Mechanical Contrs. Corp., 119 A.D.2d 980, 500 N.Y.S.2d 878). Under New York's transactional analysis approach to res judicata, "once a claim is brought to a final conclusion, all other claims * * * are barred, even if based upon different legal theories or if seeking a different remedy" (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158; see, Boronow v. Boronow, 71 N.Y.2d 284, 288, 525 N.Y.S.2d 179, 519 N.E.2d 1375; Feigen v. Advance Capital Mgt. Corp., 146 A.D.2d 556, 558, 536 N.Y.S.2d 786; Israel v. Kaye Assocs., 145 A.D.2d 467, 468, 535 N.Y.S.2d 103). Also, a judgment rendered with respect to a defense bars any counterclaims arising out of the same transaction or series of transactions (see, Henry Modell & Co. v. Minister, Elders & Deacons of Ref. Prot. Dutch Church, 68 N.Y.2d 456, 461, 510 N.Y.S.2d 63, 502 N.E.2d 978).

In regard to issue preclusion or collateral estoppel, a party and those in privity with him are precluded from relitigating issues previously resolved against the party where the issue in the prior action is identical and where the party against whom the estoppel is sought has been afforded a full and fair opportunity to contest the decision (see, Liss...