DAN GROPPER, plf-res, v. 200 FIFTH OWNER LLC def-ap

4359-4360. DAN GROPPER, plf-res, v. 200 FIFTH OWNER LLC def-ap — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (John B. Martin of counsel), for ap — Parker Hanski LLC, New York (Glen H. Parker of counsel), for res — Orders, Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 14, 2016, which denied defendants' motions to dismiss the complaint, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

4359-4360. DAN GROPPER, plf-res, v. 200 FIFTH OWNER LLC def-ap — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (John B. Martin of counsel), for ap — Parker Hanski LLC, New York (Glen H. Parker of counsel), for res — Orders, Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 14, 2016, which denied defendants’ motions to dismiss the complaint, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff’s state claims are barred by the doctrine of res judicata (regardless of whether the state or federal tests are applied), as he agreed to a dismissal with prejudice of the prior federal action alleging the same state claims (see EDP Med. Computer Sys., Inc. v. United States, 480 F3d 621, 624 [2d Cir 2007]; Insurance Co. of State of Pa. v. HSBC Bank USA, 10 NY3d 32, 38, n3 [2008]; see also Matter of Josey v. Goord, 9 NY3d 386, 389-390 [2007]; Marinelli Assoc. v. Helmsley-Noyes Co., 265 AD2d 1, 5-6 [1st Dept 2000]). Plaintiff sought a voluntary dismissal on the eve of trial. The federal court noted that there had been a year of litigation prior to dismissal, including motions and depositions. A voluntary dismissal with prejudice is an adjudication on the merits for res judicata purposes (EMI Blackwood Music Inc. v. KTS Karaoke, Inc., 655 Fed Appx 37, 40 [2d Cir 2016]; Carter v. Inc. Vil. of Ocean Beach, 759 F3d 159, 165-166 [2d Cir 2014]; see also Nemaizer v. Baker, 793 F2d 58, 60-61 [2d Cir 1986]). “Res judicata does not require the precluded claim to actually have been litigated; its concern, rather, is that the party against whom the doctrine is asserted had a full and fair opportunity to litigate the claim” (EDP Med. Computer Sys., 480 F3d at 626).

DAN GROPPER, plf-res, v. 200 FIFTH OWNER LLC def-ap

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to New York Law Journal