Toscano v 4B's Realty VIII Southhampton Brick & Tile LLC

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Toscano v 4B's Realty VIII Southhampton Brick & Tile LLC 2010 NY Slip Op 33765(U) April 9, 2010 Supreme Court, Suffolk County Docket Number: 07-34946 Judge: Joseph Farneti Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 07-34946 SUPREME COlJRT - STATE OF NEW YORK I.A.S. PART 37 - SUFFOLK COUNTY 1 iO!l MOlION DATE 12-17-09 ADJ. DATE 1-7-10 Mot. Seq. # 004 - MG; CASEDISP JOSEPH F,4RNETI Acting Justice Supreme Court __ RICHARD A. KRASLOW, P.C. Attorney for Plaintiffs 425 Broad Hollow Road, Suite 206 Melville, New York 11747 Plaintiffs, - against LYNN, GARTNER & DUNNE, LLP Attorneys for Defendants 330 Old Country Road, Suite 103 Mineola, New York 1 150 1 413 S K l ~ A I1'Y 'JIII SOUTHAMPTON BRICK ~t:i ILk Ll,('. BERT BRODSKY and H i\RN k3'T BRC WN, Defendants. -- . X Lpoii the following papers numbered 1 to 2 read on this motion for summary iudgment ; Notice of Motion/ Order 8 1 - 17 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and \Lipporting papers 18 - 26 ; Replying Affidavits and supporting papers 27 - 28 ; Other -; - ( ) it is, i \ h o w Cause and :upporting papers o ORDERED that this m,otion by defendants for an order pursuant to CPLR 32 12 granting qtiinniary judgmmt in their favor dismissing the complaint is granted. i'his IS ar action by pla.intiffs to quiet title pursuant to Real Property Actions & Proceedings Law "\t:iclt. I 5 by car celling a deed of real property known as No Number Leecon Court (Leecon Court prcyerty ) in Soul hampton, New York that was allegedly conveyed for no consideration by defendants' I raiidulent inducement. Plaintiff Angelo Toscano (Angelo) and defendant 4B's Realty VI11 h>iitlianiptonBrick & Tile, LL,C (4 B's Realty VIII) were owners of Southampton Brick and Tile, LLC i Souihampton Brick), a who1e:saler and retailer of masonry and tile products. Defendants Bert E. H n 111sI<y (Urodsky) and Barnett Brown (Brown) jointly owned defendant 4B's Realty VIII. I'laiiiti fiB allege that plaintiff Angela Toscano (Angela), wife of plaintiff Angelo Toscano, had t t i b l w c f thc 1,eecon Court property since 1994 and was induced in October 2006 by defendants, through !ici iiusband. t o convey said property to defendant 4 B's Realty VI11 as a condition of continued ~iiationsIbr the division of Southampton Brick. In addition, plaintiffs allege that Angelo had a Iiciii~iicialintercct in said propixty. According to plaintiffs, they were promised by defendants that the [* 2] Leecon Court property would be effective only upon completion of the agreement for the .!TI ~ \ i t , n 01 Southampton Brick, the deed would not be recorded, and Angelo would be credited the iiitzeci 1 aluation of the property, $1.2 million at closing. Plaintiffs also allege that notwithstanding JciLxlciiit\. reprcsentations, the deed was recorded in the Suffolk County Clerk s Office on November 2, u and :tlniost immediately thereafter defendants terminated negotiations for the division of 10 ~ o ~ ~ ~ l ~ aBrick.p They further allege that plaintiffs reasonably relied on defendants representations i~i ~on mlq 10 real t/e af er execution of the deed that defendants representations were false and that defendants -1: J i times intended to convert the Leecon Court property for their own use, to the exclusion and .i I 1 i1 ne t i t o 1 plai I it i ffs . ~ ~ i n x 1 e i the 01 13) thcir complaint, plaintiffs allege a first cause of action for cancellation of the deed; a second - c ~o ~action for f ~ w fraud; a third cause of action for unjust enrichment; and a fourth cause of action for In tk eir answer, defendants allege that they had no communications with Angela with X ~ ~ ~ Cto the Leccon Court property and admit that Angela executed a deed transferring title to said C I pi opert> t o defendant 4 B s Realty VI11 on October 20, 2006. 2 ) I L ersion in a rclatcd action entitled, 4B s Realtv 1530 CR39, LLC, Plaintiff, against Anpelo Toscano, SoLdianipton Brjck and Tile, L,LC, United States of America, State of New York, ABC Corp., XYZ Grp..Defendan15 under index number 07-35097,4B s Realty 1530 CR 39, LLC, whose members were alho Brodsky anc Brown, sought to foreclose a mortgage on real property owned by Angelo located at i i:O County Road 39 (1530 County Road 39 property) in Southampton, New York on which S,c;iithampton Brick was a tenant. The counterclaim in Angelo s answer in said action and the coinplaint ol the third-party action entitled, Angelo Toscano, Third-party Plaintiff, against Bert E. 13rodskv and Barnett Brown, Third-party Defendants. alleged a first cause of action for fraud resulting in conversion of the Leecon Court property containing the same allegations as found in the second and t i x irth causes of action in the instant action. %id action was removed to United States District Court, Eastern District of New York by dcfcndant 1 nited States of America where plaintiff 4B s Realty 1530 CR 39, LLC was granted summary Iutlgment 011 its complaint by rnemorandum of decision and order dated March 12, 2009 (Spatt, J.) (see, 4 R s Realty 2530 CR 39, LLC v Toscano, 08-CV-2694,2009 WL 70201 1[EDNY Mar. 12,20091). Subsequently, by memorandum of decision and order of the Federal District Court dated November 7, 2000 (Spatt, J ). plaintiff 4B s Realty 1530 CR 39, LLC was granted summary judgment dismissing \!igelo s countei claim and the third-party defendants were granted summary judgment dismissing !tigelo s third-party complainit. With respect to its dismissal of Angelo s third-party claims, the Federal 1 )i\trict Court held in its Noveimber 7, 2009 decision that Angelo s bare allegations of fraud were belied 1-1 the Iettei-s bet.,veen his own attorney and the then attorney for Brodsky and Brown which letters were delt \)id of an? reference to the alleged oral representations and by Angelo s own inaction after the deed i ( ! recoii C ourt was recorded. The Federal District Court pointed out that Angelo was a sophisticated 1 is another related contract action entitled, Southamuton Brick & Tile, LLC and 4B s RealtvVIII B x k and Tile, LLC, Plaintiffs, against Southampton Tile & Marble Corp. and Angel0 Toscano, !)elendants uncier index number 07-20976. I het yiiilimpmii [* 3] ieprzsented by counsel in an arms-length transaction with his business partners who i ~ ~ ~ ! - i i i i the bust less risk of failing to memorialize the alleged oral representations and failed to t d \i:ivon\triite that he reasonably relied on those representations in agreeing to transfer the Leecon Court 1,: .~~ic \\iiiLi~i ipi(t\\cr[\ 7 - i ! iri I )clendants now move for summary judgment dismissing the complaint based on the doctrines of 1 tidicata and collateral estoppel and the relationship of privity between the plaintiffs as well as based c:lw~mentarycvidence. In opposi ion to the motion, plaintiffs contend that based on the Operating Agreement of \o~,thaiiiptonBrick dated May 2003, they had no affirmative obligation to make an additional capital ; o i i i r i b u t i o i i to Southampton Brick or to otherwise contribute the Leecon Court property and that the ~_.ipit;iIaccount oi Angelo maintained by Southampton Brick does not indicate that Angelo was ever iri.ci!tcd with the fair market value of the Leecon Court property. In addition, plaintiffs contend that the I~cJcralDistrict ( ourt decision does not have preclusive effect on the first, third and fourth causes of x i i o n herein or upon the claimls of Angela, the fee owner of the Leecon Court property who has no ,)it ncrship interez;t in Southampton Brick. iJndcr re: judicata, or claim preclusion, a valid final judgment bars future actions between the on tne same cause of action (see, Parker v Blauvelt Volunteer Fire Co., Inc., 93 NY2d :3; 337 [ 19991) As a general rule, once a claim is brought to a final conclusion, all other claims ,tri.;rng o u t ofthe same transaction or series of transactions are barred, even if based upon different \qiir?e parties thtwrics or il seelcing a different remedy (see, Parker v Blauvelt Volunteer Fire Co., Inc., 93 NY2d at 13 quoting O Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). I he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from I-i.iirigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, ,tnd decided against that party lor those in privity, whether or not the tribunals or causes of action are the \<i*nc (Ryan v NPWYork Tel. Co., 62 NY2d 494, 501-502 [1984]; Breslin Realty Dev. Corp. v Shaw, .ll>-3d , 893 NYS2d 95, 99 [2d Dept 20101). Once the party seeking the benefit of collateral ~ \ : ~ ~ establishes that the idlentical issue was material (emphasis supplied) to a prior judicial or pel quLi~i-rudicial ermination, the party to be estopped bears the burden of establishing the absence of a de t i i i ! and fair opportunity to litigate the issue in the prior action or proceeding (see, id.). .- **I I ]he ti rm privity * * * denominates a rule * * * to the effect that under the circumstances, and ! o tie purposes 3f the case at hand, a person may be bound by a prior judgment to which he was not a rccord. I t includes those who are successors to a property interest, those who control an action Liitkioughnot lbrrnal parties to it, those whose interests are represented by a party to the action, and ~ * ~ ~ ~ coparties to a prior action (Watts vSwiss Bank Corp., 27 NY2d 270, 277 [1970]; Bayshore \ibI! I+ rind)*Partners, L.P. v Foundation of Jewish Plzilantltropies of Jewish Federation of Greater Fort I rrirricrhlr. 270 AD2d 374 [2d Dept 20001, Iv denied 95 NY2d 756 [2000]). p x i \ of lierc, dl of the claims (ofthe instant action are barred by the doctrines of res judicata and L i i ; a t t ~ r estoppzl (see, Fitzgerald v Hudson Natl. GolfClub, 35 AD3d 533 [2d Dept 20061). The a/ [* 4] sccks relief in the form of cancellation of the deed and reconveyance of the Leecon Court rzco\ ery of the value of the property based on the alleged fraudulent transfer of the Leecon I Iowever, claims to recover damages for the alleged fraudulent transfer without i i r t piopert! i t i : p e n A o n of' the Leecon Court property were clearly decided against Angelo in the Federal District s u i 7 x t i o i ? where he had a full and fair opportunity to litigate the matter (see, Licini v Graceland F'loriyt, Inc.. -32.\D3d 825, 827 [2d Dept 20061). In addition, his wife Angela is bound by the Federal Di,li~ct C'oLirt's c ecision inasmuch as her interests were represented by her husband and their attorney I I id x t i o i i Therefore, plaintiffs Angelo and Angela are barred from maintaining the present action Fitzgrrald 1' Hudson Nail. Golf Club, supra). iict,iiit x t i o i i '71 tipc'r~ 01 8 j \ccc~rdin;ly, the instant motion is granted and the complaint is dismissed in its entirety. c @o$&seph Farneti W t i n g Justice Supreme Court X FINAL DISPOSITION NON-FINAL DISPOSITION

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