Winkler v. Weiss

• Decision Date: 13 May 2002
• Citation: 742 N.Y.S.2d 124,294 A.D.2d 428
• Court: New York Supreme Court — Appellate Division
• Parties: BERNARD WINKLER et al., Appellants,<BR>v.<BR>EDWARD WEISS et al., Respondents.

294 A.D.2d 428

742 N.Y.S.2d 124

BERNARD WINKLER et al., Appellants,

v.EDWARD WEISS et al., Respondents.

Decided May 13, 2002.

Florio, J.P., Smith, Luciano and H. Miller, JJ., concur.

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

In May 1991 the plaintiffs obtained judgments against defendants Edward Weiss and Leonard Weiss. In September 1991, Leonard Weiss filed for bankruptcy and the plaintiffs filed proofs of claim in the bankruptcy proceeding. In November 1991, the plaintiffs commenced the instant action to set aside a transfer of real property from Edward Weiss to the defendant M.L.W. Realty Corp. (hereinafter M.L.W. Realty), a corporation owned by Edward's two sons, the defendants Leonard Weiss and Mitchell Weiss. While this action was pending, the trustee of Leonard Weiss's bankruptcy estate commenced an adversary proceeding culminating in a judgment of the United States Bankruptcy Court for the Eastern District of New York, determining that Leonard's bankruptcy estate and Leonard's brother, Mitchell, were each 50% owners of the subject real property and authorizing the bankruptcy trustee to sell the property and distribute the proceeds to Leonard's bankruptcy estate and Mitchell Weiss. The bankruptcy court subsequently dismissed an adversary proceeding brought by Edward Weiss seeking a stay of the sale of the property and the imposition of a constructive trust. The plaintiffs filed a limited objection to the sale of the property. After a hearing was held on February 8, 2000, the bankruptcy court ordered that the property be sold at public auction "free and clear of any claims by the plaintiffs." Pursuant to the bankruptcy court's orders, the property was sold at public auction on April 24, 2000.

Thereafter, the plaintiffs moved for summary judgment and Mitchell Weiss and M.L.W. Realty cross-moved, inter alia, for summary judgment, asserting that the determinations in the bankruptcy proceeding barred the instant action. The Supreme Court denied the motion, granted the cross motion and directed that the complaint be dismissed in its entirety. We affirm.

Res judicata serves to bar future litigation between the same parties or those in privity with the parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that was raised in a prior proceeding (see Matter of Hodes v Axelrod, 70 NY2d 364, 372-373; Matter of Edward Joy Co. v Hudacs, 199 AD2d 858, 859). The rules of res...