Opinion
2002-07406, 2003-00742.
Decided February 9, 2004.
In an action, inter alia, to recover damages for fraud (Action No. 1) and a related action, among other things, to set aside the bid of the defendant Hyman Jacobs for the assets of the defendant Sidjay of New Jersey, Inc. (Action No. 2), Mayer Weber, the plaintiff in both actions, appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Kings County (Kramer, J.), dated June 11, 2002, as granted the motion of the defendant Sidjay of New Jersey, Inc., for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against it, and (2) so much of an order of the same court dated December 13, 2002, as granted the motion of the defendant Hyman Jacobs, and the separate motion of the defendants Sidjay of New Jersey, Inc., and Jack Rosen to dismiss the complaint in Action No. 2 insofar as asserted against them on the ground of res judicata.
Sol Mermelstein, Brooklyn, N.Y. (S. Herman Klarsfeld of counsel), for appellant.
Turchin Hoffman, P.C., New York, N.Y. (Morton J. Turchin of counsel), for respondent Hyman Jacobs.
Val Mandel, P.C., New York, N.Y. (Hellring Lindeman Goldstein Siegal, LLP, Newark, N.J. [Robert B. Rosen] of counsel), for respondents Sidjay of New Jersey, Inc., and Jack Rosen.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
In Action No. 1, the Supreme Court properly determined that the prior order of this court in Weber v. Jacobs ( 289 A.D.2d 226) rendered academic the complaint insofar as asserted against the defendant Sidjay of New Jersey, Inc. ( see Beltrone v. General Schuyler Co., 252 A.D.2d 640; cf. Martinez v. City of New York, 299 A.D.2d 526; D'Amato v. Access Mfg., 305 A.D.2d 447).
Contrary to the plaintiff's contention, the Supreme Court properly dismissed the second complaint. The doctrine of res judicata bars the plaintiff from filing a second action presenting allegations that arise out of the same transactions and occurrences that formed the basis for the first action. A second action is barred even if it is based on different theories or is seeking a different remedy ( see O'Brien v. City of Syracuse, 54 N.Y.2d 353; Bogan v. Northwestern Mut. Life Ins. Co., 292 A.D.2d 411; Pappas v. Cerrone, 281 A.D.2d 608).
The plaintiff's remaining contentions are without merit.
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.