CANTOR FITZGERALD CO v. PEI GLOBAL PARTNERS HOLDINGS LLC (2026)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 29, 2025, which granted defendant's motion to dismiss the complaint in its entirety pursuant to CPLR 3211(a)(5), unanimously affirmed, without costs.

Supreme Court properly dismissed the complaint on the ground of res judicata because defendant was in privity with the arbitration respondents (see e.g. Green v. Santa Fe Indus., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 [1987]).  “To determine if a party in the prior action is in privity with a nonparty to the prior action, we must consider ‘whether the circumstances of the actual relationship, the mutuality of interests, and the manner in which the nonparty's interests were represented in the earlier litigation established a functional representation such that the nonparty may be thought to have had a vicarious day in court’ ” (Gulf LNG Energy, LLC v. Eni S.p.A., 232 A.D.3d 183, 190, 219 N.Y.S.3d 17 [1st Dept. 2024], lv denied 44 N.Y.3d 902, 2025 WL 2646836 [2025], quoting Rojas v. Romanoff, 186 A.D.3d 103, 111–112, 128 N.Y.S.3d 189 [1st Dept. 2020]).  Here, individual bankers who were respondents in the arbitration are defendant's principals and hold 100% of its equity.  Moreover, all arbitration respondents, including the entity respondent, were aligned with defendant by common purpose and were represented by the same counsel in the arbitration as defendant is here (see id.).