Birnbaum v Goldenberg Consulting Group, Inc.

[*1] Birnbaum v Goldenberg Consulting Group, Inc. 2018 NY Slip Op 51012(U) Decided on June 28, 2018 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
570147/18

Murray Birnbaum, as Assignee, Plaintiff-Appellant,

against

Goldenberg Consulting Group, Inc., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Sabrina B. Kraus, J.), dated July 27, 2017, which granted defendant's motion to dismiss the complaint.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated July 27, 2017, affirmed, with $10 costs.

Civil Court properly dismissed the complaint on res judicata grounds. The instant action, like the small claims action brought by plaintiff, seeks damages for defendant's alleged failure to properly split a particular employment placement commission. That plaintiff now seeks greater damages than sought in the small claims action does not alter this conclusion (see Chapman v Faustin, 150 AD3d 647 [2017]). Nor is a contrary result required by plaintiff's claim that defendant rendered false testimony in the small claims action. A party who has lost a case as result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false testimony (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2009]). Plaintiff's remedy is limited to proceeding in the small claims court case where the alleged misconduct occurred (see Little Rest Twelve, Inc. v Zajic, 137 AD3d 540 [2016]) and a possible appeal from the judgment of that court (see Joseph v Citibank, 271 AD2d 358 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 28, 2018