Firescu v Diamond

Firescu v Diamond 2023 NY Slip Op 05361 Decided on October 24, 2023 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 24, 2023
Before: Kern, J.P., Singh, Gesmer, Scarpulla, JJ.
Index No. 650301/21 Appeal No. 895 Case No. 2022-03769

[*1]Dragos Adrian Firescu, Plaintiff-Respondent,

v

Warren Diamond, Defendant-Appellant.

Davison Eastman Munoz Paone P.A., Bronx (Matthew K. Blaine of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for appellant.

Stern Tannenbaum & Bell LLP, New York (David S. Tannenbaum of counsel), for respondent.

Order, Supreme Court, New York Count (Andrew Borrok, J.), entered July 28, 2022, which granted plaintiff's motion to dismiss defendant's counterclaim, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff failed to establish that he was entitled to dismissal of defendant's counterclaim on the basis of collateral estoppel, as he has failed to demonstrate that there is an identity of issues necessarily decided in a prior arbitration involving the parties in this action (CPLR 3211[a][5]). Defendant's rights, if any, to receive funds from plaintiff under paragraph 6(f) of an October 11, 2016 agreement were not adjudicated by the arbitration panel, nor did the panel void that agreement. Rather, the panel decided that defendant forged a signature on a different agreement dated August 16, 2011 (see e.g. City of New York v Welsbach Elec. Corp., 9 NY3d 124, 128 [2007]; Ginezra Assoc. LLC v Ifantopoulos, 70 AD3d 427, 430 [1st Dept 2010]). Thus, the arbitration panel did not decide the issue of whether defendant is entitled to transfer of funds under the terms of the October 2016 agreement.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 24, 2023