James v. Arango

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Lane, J.), dated May 16, 2012, as granted that branch of the motion of the defendant FFFC which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

We affirm the granting of that branch of the motion of the defendant FFFC which was for summary judgment dismissing the complaint insofar as asserted against it, but on grounds different from those relied upon by the Supreme Court ( see Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 844, 952 N.Y.S.2d 592). The plaintiff commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court) which was based on the same nucleus of operative facts as the complaint in this action. In an order dated April 5, 2010, the District Court, inter alia, granted, on default, FFFC's motion for summary judgment dismissing the complaint insofar as asserted against it. Based on that order, the doctrine of res judicata bars the plaintiff's present action against FFFC ( see Saud v. Bank of New York, 929 F.2d 916, 919 [2d Cir.];Uzamere v. Uzamere, 89 A.D.3d 1013, 933 N.Y.S.2d 336 ; Lazides v. P & G Enters., 58 A.D.3d 607, 871 N.Y.S.2d 357;Town of New Windsor v New Windsor Volunteer Ambulance Corps. Inc., 16 A.D.3d 403, 404–405, 791 N.Y.S.2d 159).