PJA Assoc. Inc. v India House, Inc.

PJA Assoc. Inc. v India House, Inc. 2012 NY Slip Op 07198 Decided on October 25, 2012 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 on October 25, 2012
Gonzalez, P.J., Moskowitz, Acosta, Freedman, Abdus-Salaam, JJ.
8380 109254/11

[*1]PJA Associates Inc., Plaintiff-Appellant,

v

India House, Inc., Defendant-Respondent.




The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of
counsel), for appellant.
Wolf Haldenstein Adler Freeman & Herz, LLP, New York
(Debra M. Schoenberg of counsel), for respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 29, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

In this action to reform or modify an agreement to conform to the parties' alleged course of dealing and to enjoin termination for an alleged default, the motion court correctly determined that the complaint merely repackaged the allegations of a prior dismissed action (see Ahead Realty LLC v India House, Inc., 92 AD3d 424 [1st Dept 2012]). Res judicata precluded the instant claims, which were not tangential and were actually litigated in the prior action; moreover, even if they had not been litigated, they could have been (see Matter of Hunter, 4 NY3d 260, 269 [2005]). While plaintiff is correct that the preclusive effect of declaratory judgment actions is limited (see Jefferson Towers, Inc. v Public Serv. Mut. Ins. Co., 195 AD2d 311, 313 [1st Dept 1993]), such exception is inapplicable here where the matter was actually litigated and the complaint in the prior action alleged numerous causes of action in addition to the request for declaratory relief (see Duane Reade, Inc. v St. Paul Fire & Mar. Ins. Co., 600 F3d 190, 196 [2d Cir 2010]).

In view of the foregoing, it is unnecessary to address the other grounds urged for affirmance.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK