715 & Peter Davey v. Jones Hirsch Connors & Bull P.C. , 27 N.Y.S.3d 867 ( 2016 )

715 & Peter Davey v Jones Hirsch Connors & Bull P.C. (2016 NY Slip Op 02571)

715 & Peter Davey v Jones Hirsch Connors & Bull P.C.

2016 NY Slip Op 02571

Decided on April 5, 2016

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 April 5, 2016
Mazzarelli, J.P., Andrias, Saxe, Moskowitz, Kahn, JJ.

100500/13 -938

[*1]715 & Peter Davey, Plaintiff-Appellant,

v

Jones Hirsch Connors & Bull P.C., Defendant-Respondent.

Peter Davey, appellant pro se.

Marshall Dennehey Warner Coleman & Goggin, New York (Richard C. Imbrogno of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered December 22, 2014, which effectively granted plaintiff's motion to reargue, and, upon reargument, adhered to the order, same court (Louis B. York, J.), entered March 7, 2014, which had granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Although the court on the reargument motion stated that reargument was denied, the court addressed the merits of the motion, and thus effectively granted reargument, rendering the order appealable (see Granite State Ins. Co. v Transatlantic Reins. Co., 132 AD3d 479, 484 [1st Dept 2015]). On reargument, the motion court properly adhered to the original determination, which had dismissed the complaint on res judicata and/or collateral estoppel grounds, since plaintiff's claims against defendant had already been litigated and decided on the merits in federal court (see e.g. Davey v Jones, 2008 US Dist LEXIS 99828, 2008 WL 5061631 [SD NY, Dec. 1, 2008, 06-Civ-4206(DC)], affd 371 Fed Appx 146, 148-149 [2d Cir 2010]; see Matter of Josey v Goord, 9 NY3d 386, 389-390 [2007]; see also Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; see also Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]).

[*2] M-938 - Davey v Jones Hirsch Connors & Bull P.C.

Motion to strike brief and for other relief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK