LANDA AS TRUSTEE FOR GOLDA LANDA 2011 IRREVOCABLE TRUST v. FRIEDMAN (2024)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about July 11, 2023, which denied third-party defendant Mark Landa's motion to dismiss the first and second causes of action of the third-party complaint as against him pursuant to CPLR 3211(a)(1), (5), and (7), unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The first cause of action in the third-party complaint– for a declaratory judgment setting forth the parties’ ownership rights in a certain apartment – and the second – for a constructive trust to provide to third-party plaintiff Alexander Friedman his ownership interest in the apartment – are barred by collateral estoppel (see generally Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984]).  Alexander may not relitigate his ownership interest in the apartment because that issue was determined in the prior divorce action between him and third-party defendant Elizabeth Friedman.

Alexander's contention that Landa failed to identify any evidence in the record that the apartment was marital property is unavailing.  The verified third-party complaint alleges that “Alexander has a legally-protected ownership interest in the Apartment as marital property,” which is a formal judicial admission (see Matter of Allstate Ins. Co. v. Rosado, 137 A.D.3d 662, 26 N.Y.S.3d 865 [1st Dept. 2016]).  In addition, Elizabeth's interest in the apartment was marital property because it was “acquired by [a] spouse[ ] during the marriage and before ․ the commencement of a matrimonial action” (Domestic Relations Law § 236[B][1][c];  see also Fields v. Fields, 15 N.Y.3d 158, 163, 165, 905 N.Y.S.2d 783, 931 N.E.2d 1039 [2010]).

Alexander claims that he argued at the divorce proceeding that Elizabeth removed the issue of the apartment ownership and debt from the parties’ settlement agreement.  However, the part of the record Alexander cites to provides that Elizabeth “refused to settle the issue of the Notes and the debt related to the Apartment,” not the ownership of the apartment.  In any event, under Domestic Relations Law § 2369(B)(5)(a), the apartment could not be removed from consideration in the divorce action, as Alexander claims (see also Boronow v. Boronow, 71 N.Y.2d 284, 287, 525 N.Y.S.2d 179, 519 N.E.2d 1375 [1988]).

Alexander contends that Landa may not argue for the first time on appeal that collateral estoppel does not require him (Landa) to be in privity with Elizabeth.  Since this is a purely legal argument, it may be raised for the first time on appeal (see e.g. Watson v. City of New York, 157 A.D.3d 510, 511, 69 N.Y.S.3d 294 [1st Dept. 2018]), and “[t]he law is clear that a party seeking to invoke ․ collateral estoppel need not have been a party to the prior action” (Bauhouse Group I, Inc. v. Kalikow, 190 A.D.3d 401, 402, 139 N.Y.S.3d 193 [1st Dept. 2021]).