FIRESCU v. DIAMOND (2023)

Order, Supreme Court, New York Count (Andrew Borrok, J.), entered July 28, 2022, which granted plaintiff's motion to dismiss defendant's counterclaim, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff failed to establish that he was entitled to dismissal of defendant's counterclaim on the basis of collateral estoppel, as he has failed to demonstrate that there is an identity of issues necessarily decided in a prior arbitration involving the parties in this action (CPLR 3211[a][5]).  Defendant's rights, if any, to receive funds from plaintiff under paragraph 6(f) of an October 11, 2016 agreement were not adjudicated by the arbitration panel, nor did the panel void that agreement.  Rather, the panel decided that defendant forged a signature on a different agreement dated August 16, 2011 (see e.g. City of New York v. Welsbach Elec. Corp., 9 N.Y.3d 124, 128, 848 N.Y.S.2d 551, 878 N.E.2d 966 [2007];  Ginezra Assoc. LLC v. Ifantopoulos, 70 A.D.3d 427, 430, 895 N.Y.S.2d 355 [1st Dept. 2010]).  Thus, the arbitration panel did not decide the issue of whether defendant is entitled to transfer of funds under the terms of the October 2016 agreement.