MARK v. COMCAST CABLE COMMUNICATIONS INC (2008)

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 24, 2006, dismissing the complaint pursuant to an order which granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The alleged fraudulent scheme is not larger in scope than the issues determined in the prior action (see Burbrooke Mfg. Co., Inc. v. St. George Textile Corp., 283 App.Div. 640, 641, 129 N.Y.S.2d 588 [1954];  compare e.g. Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 218, 371 N.Y.S.2d 884, 333 N.E.2d 163 [1975];  New York City Tr. Auth. v. Morris J. Eisen, P.C., 276 A.D.2d 78, 88-89, 715 N.Y.S.2d 232 [2000] ).   All of the issues raised by plaintiff in this action were raised and determined in the prior action.   Plaintiff simply offers newly discovered evidence to address the same issues, namely, the validity of the merger agreement between two companies of which plaintiff was a principal, and the issuance of shares of stock to defendants.   Accordingly, plaintiff's remedy is a motion pursuant to CPLR 5015(a)(2) and (3) addressed to the court that issued the judgment dismissing the prior action.   In view of the foregoing, we do not address the parties' substantive arguments.