John Hollings, Inc., Plaintiff–Appellant, v. LLC (2011)

Marcus Rosenberg & Diamond LLP, New York (David Rosenberg of counsel), for Nick & Duke, LLC;  West 23 rd Street Hospitality LLC;  Richard Born;  Davis & Davis, LLP;  Eric M. Davis and MJG Holdings, LLC, respondents.

Nixon Peabody LLP, New York (Constance M. Boland of counsel), for Advocate Capital, Inc., respondent.

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Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered August 24, 2009, which granted defendants' motions to dismiss the complaint and for sanctions to the extent of awarding costs, including reasonable attorneys' fees, unanimously affirmed, with costs.

The issue whether plaintiff was wrongfully deprived of its use of the subject premises was fully and fairly litigated, and necessarily decided, in the prior Civil Court proceeding (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 [1984] ).   Plaintiff's eviction was based on uncured lease violations alone and had no connection to the wrongs it alleges against defendants in this action.

We find that plaintiff's conduct in commencing this action was frivolous within the meaning of 22 NYCRR 130–1.1.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK