Pere v. Vinscin Realty Corp. , 672 N.Y.S.2d 723 ( 1998 )

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 9, 1997, which, insofar as appealed from, dismissed defendants-appellants’ first, second and sixth counterclaims for failure to state a cause of action, unanimously affirmed, with costs.

The first and second counterclaims alleging fraud against plaintiffs arising out of a transaction separate from that alleged in the complaint were properly dismissed as barred by the settlement in another action. We also note that appellants, who were not real parties in interest to this other transaction, would lack standing to raise this claim even if it were viable, and that the purported assignment of this dubious claim is not in the record. Concerning the sixth counterclaim, we agree with the IAS Court that to the extent appellants seek indemnification for their potential liability arising out of plaintiffs’ allegedly fraudulent conduct in the settled matter, it too is extinguished by the settlement, and we would also note that any such claim is premature since there is no claim presently pending against appellants arising out of the separate transaction. To the extent that the sixth counterclaim seeks indemnification from plaintiffs for the cross claims allegedly asserted against them by their codefendants herein, the alleged cross claims are not part of the record, and thus are not properly before this Court, and, in any event, the claim is premature. Concur — Milonas, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.