WEINBERG v. Jeffrey Asher, et al., Defendants–Respondents–Appellants. (2018)

Order, Supreme Court, New York County (Manuel Mendez, J.), entered February 22, 2017, which denied plaintiff's motion for a stay of eviction, and order, same court and Justice, entered August 4, 2017, which, to the extent appealed from, granted defendants David Kaminsky, Danielle Kaminsky (together, the Kaminsky defendants), Jeffrey Asher, Robinson Brog Leinwand, Green, Genovese & Gluck P.C. (collectively, the Asher defendants), and Leslie Sultan's motion to dismiss the complaint as against them, denied the Asher defendants' motion for sanctions, and denied plaintiff's cross motion to amend the complaint, and order, same court and Justice, entered January 25, 2018, which granted defendants Linda Salamon and 371 West 46th Street Properties, LLC's (collectively, the Salamon defendants) motion to dismiss the complaint as against them and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.

The claims against Sultan and the Asher defendants are barred by the doctrine of res judicata (see Weinberg v. Sultan, 142 A.D.3d 767, 37 N.Y.S.3d 13 [1st Dept. 2016] [affirming, inter alia, summary dismissal of legal malpractice claims] ).  Although the present claims against these defendants do not sound in malpractice, they arise out of the same transaction as the dismissed malpractice claims (see Matter of Josey v. Goord, 9 N.Y.3d 386, 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007] ).  Further, they are duplicative of the dismissed malpractice claims, since they do not allege independent intentionally tortious conduct (see Atton v. Bier, 12 A.D.3d 240, 242, 785 N.Y.S.2d 426 [1st Dept. 2004] ).

The claims against the remaining defendants are not subject to dismissal under res judicata, because they were dismissed not on the proof but on the sufficiency of the pleadings (see Imprimis Invs. v. Insight Venture Mgt., 300 A.D.2d 109, 110, 752 N.Y.S.2d 26 [1st Dept. 2002] ).  However, the instant complaint, while more verbose than the prior complaint, still fails to state a cause of action for “overreaching, undue influence and fraud” (see Weinberg v. Sultan, 142 A.D.3d 767, 37 N.Y.S.3d 13).  Many of the allegations in the complaint and the proposed amended complaint are made upon information and belief, which is “not sufficient to establish the necessary quantum of proof to sustain allegations of fraud” (Facebook, Inc. v. DLA Piper LLP [U.S.], 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept. 2015], lv denied 28 N.Y.3d 903, 2016 WL 4820902 [2016] ).

In light of the deficiencies in the complaint, plaintiff could not show a likelihood of success on her claims; thus, the court properly denied her motion for injunctive relief (see Lee v. 215 W. 88 St. Holdings, LLC, 106 A.D.3d 460, 965 N.Y.S.2d 865 [1st Dept. 2013]; CPLR 6301).  The foregoing notwithstanding, the court providently exercised its discretion in denying the Asher defendants' motion for sanctions at this stage.

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.