Opinion
December 16, 1997
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
The contract claims were properly dismissed because they will be addressed in other litigation (CPLR 3211 [a] [4]). Since substantial identity of parties ( see, Employers Ins. v. Primerica Holdings, 199 A.D.2d 178) and "essential" identity of issue ( see, Parker v. Rich, 140 A.D.2d 177) were demonstrated, dismissal of the agreement-based claims was a proper exercise of discretion ( see, Morgulas v. Yudell Realty, 161 A.D.2d 211, 212). The claims sounding in tortious waste are insufficient, since, inter alia, there has been no pleading of damage to the building that changes the nature of the property ( see, Garland v. Titan W. Assocs., 147 A.D.2d 304, 310). The claims based on Debtor and Creditor Law § 276 require a detailed pleading of fraud and the remaining claims to set aside conveyances required a "conveyance made without fair consideration" and the presence of "creditors and * * * other persons who become creditors during the continuance of [the subject] business" (Debtor and Creditor Law § 274), none of which plaintiff has pleaded adequately. We have considered plaintiff's remaining arguments and find them to be without merit.
Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Tom, JJ.