HIGH RETURN PROPERTIES INC v. CALKA (1998)

Judgment, Supreme Court, New York County (Sheila Abdus Salaam, J.), entered March 25, 1997, awarding plaintiff damages, and bringing up for review orders, entered on or about October 17, 1997 and March 6, 1998, which, in an action for use and occupancy, inter alia, granted plaintiff's motion for summary judgment, denied defendant's cross motion to dismiss or strike the complaint, and, upon a search of the record, dismissed defendant's third-party complaint without prejudice to its recommencement in a separate plenary action, unanimously affirmed, with costs.

 The IAS court correctly held that its order of October 16, 1996, issued in plaintiff's prior proceeding against defendant for a writ of assistance (RPAPL 221) and fixing the amount of an appeal bond after a hearing, collaterally estops defendant from relitigating the amount of use and occupancy she owes plaintiff.   Defendant's claim that plaintiff is not a proper party could and should have been raised in the prior proceeding, and in any event is not a ground for dismissing the action (see, Bova v. Vinciguerra, 139 A.D.2d 797, 799, 526 N.Y.S.2d 671).

MEMORANDUM DECISION.