Opinion
No. 4779.
January 8, 2009.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 16, 2007, which denied defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint, unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Meyer, Suozzi, English Klein, P.C., Garden City (Jeffrey G. Stark of counsel), for appellants.
The Dweck Law Firm, LLP, New York (Jack S. Dweck and Corey Stark of counsel), for respondents.
Before: Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.
The dismissal in a prior Westchester County action, pursuant to CPLR 3211 (a) (1) and (7), of plaintiff's' breach of contract action as against defendant Mohegan Hill Development, LLC (MHD), bars the instant action for, inter alia, tortious interference with a contract and unjust enrichment, as to all defendants ( see generally O'Brien v City of Syracuse, 54 NY2d 353, 357). Not only are the two actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely because of technical pleading defects, but on the merits ( see Lampert v Ambassador Factors Corp., 266 AD2d 124; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558-559). Dismissal of this action as against the remaining defendants is warranted since they are in privity with MHD ( see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485).