Opinion
2018–11204 Index No. 517284/17
03-18-2020
Samiul NOOR, etc., Appellant, v. Khalid MAHMOOD, et al., Respondents.
Jonathan Silver, Kew Gardens, NY, for appellant. Perry Dean Freedman, Purchase, NY, for respondents.
Jonathan Silver, Kew Gardens, NY, for appellant.
Perry Dean Freedman, Purchase, NY, for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
In September 2017, the plaintiff commenced this shareholder derivative action against the defendant Coney Island Day Care Center, Inc., and its officers and directors, the defendants Khalid Mahmood and Asad Mahmood, alleging, inter alia, that they breached their fiduciary duty to him and other shareholders similarly situated when they diverted corporate assets for their own use. Following joinder of issue, the defendants moved for summary judgment dismissing the complaint on the ground that the complaint was barred by the doctrine of res judicata. The Supreme Court granted the motion, and the plaintiff appeals.
The doctrine of res judicata bars the litigation of a claim if, in a former litigation between the parties, or those in privity with them, in which there was a final conclusion, the subject matter and the causes of action are identical or substantially identical (see Xiao Yang Chen v. Fischer , 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723 ; O'Connell v. Corcoran , 1 N.Y.3d 179, 184–185, 770 N.Y.S.2d 673, 802 N.E.2d 1071 ; Williams v. City of Yonkers , 160 A.D.3d 1017, 1018–1019, 76 N.Y.S.3d 92 ). "Because the claim asserted in a stockholder's derivative action is a claim belonging to and on behalf of the corporation, a judgment rendered in such an action brought on behalf of the corporation by one shareholder will generally be effective to preclude other actions predicated on the same wrong brought by other shareholders" ( Parkoff v. General Tel. & Elecs. Corp. , 53 N.Y.2d 412, 420, 442 N.Y.S.2d 432, 425 N.E.2d 820 ; see Auerbach v. Bennett , 47 N.Y.2d 619, 627, 419 N.Y.S.2d 920, 393 N.E.2d 994 ; Grika v. McGraw , 161 A.D.3d 450, 451, 76 N.Y.S.3d 546 ; Pawling Lake Prop. Owners Assn., Inc. v. Greiner , 72 A.D.3d 665, 668, 897 N.Y.S.2d 729 ).
Here, the defendants presented evidence that, in December 2015, another shareholder had commenced a derivative action against them based on the same alleged wrongs, and that, in an order dated May 17, 2018, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint in that action. An order granting a motion for summary judgment is made on the merits and has preclusive effect (see Collins v. Bertram Yacht Corp. , 42 N.Y.2d 1033, 1034, 399 N.Y.S.2d 202, 369 N.E.2d 758 ; Bayer v. City of New York , 115 A.D.3d 897, 899, 983 N.Y.S.2d 61 ; Methal v. City of New York , 50 A.D.3d 654, 656, 855 N.Y.S.2d 588 ). Additionally, the defendants demonstrated that the plaintiff's claims arose from the same operative facts as the claims raised in that action (see Parkoff v. General Tel. & Elecs. Corp. , 53 N.Y.2d at 423, 442 N.Y.S.2d 432, 425 N.E.2d 820 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint as barred by the doctrine of res judicata (see Core Cont. Constr., LLC v. Luckyland [N.Y.], LLC , 162 A.D.3d 640, 641, 78 N.Y.S.3d 235 ; Myers v. Meyers , 121 A.D.3d 762, 765, 993 N.Y.S.2d 729 ).
MASTRO, J.P., CHAMBERS, MALTESE and CHRISTOPHER, JJ., concur.