HERITAGE REALTY ADVISORS LLC v. MOHEGAN HILL DEVELOPMENT LLC (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.

The dismissal in a prior Westchester County action, pursuant to CPLR 3211(a)(1) and (7), of plaintiffs' 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 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ).   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 A.D.2d 124, 698 N.Y.S.2d 234 [1999];  Feigen v. Advance Capital Mgt. Corp., 146 A.D.2d 556, 558-559, 536 N.Y.S.2d 786 [1989] ).   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 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ).