Sebastian Holdings, Inc., Plaintiff–Appellant, v. AG

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Supreme Court, Appellate Division, First Department.

Sebastian Holdings, Inc., Plaintiff–Appellant, v. Deutsche Bank, AG, Defendant–Respondent.

3262– 3262A

Decided: February 28, 2017

Andrias, J.P., Feinman, Gische, Gesmer, JJ. Zaroff & Zaroff LLP, Garden City (Richard M. Zaroff of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (David G. Januszewski of counsel), for respondent.

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Orders, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 27, 2016, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the amended complaint, and denied plaintiff's motion for leave to serve and file a proposed second amended complaint, unanimously affirmed, with costs.

The claims in this action are the subject of a prior final judgment of an English court, which found in defendant's favor and denied plaintiff's counterclaims,1 awarding defendant a sum of money.

The motion court properly accorded recognition to the judgment of the English court based on the doctrine of comity.  Having failed to show fraud in the procurement of the judgment or that recognition of the judgment would do violence to, or be fundamentally offensive and inimical to, some strong public policy of this State, plaintiff is precluded from attacking the validity of the judgment in this action (Greschler v. Greschler, 51 N.Y.2d 368, 376 [1980];  Matter of Gotlib v. Ratsutsky, 83 N.Y.2d 696, 699–700 [1994] ).

To the extent the proposed claims are based upon different theories or seek a different remedy from the claims decided in the English action, they nevertheless are barred because they are predicated upon the same series of transactions and occurrences that formed the basis of that action (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 [1981] ), and they could have been raised in that action (see Wietschner v. Dimon, 139 AD3d 461 [1st Dept 2016], lv denied 28 NY3d 901 [2016];  Pahmer v. Touche Ross & Co., 271 A.D.2d 371 [1st Dept [2000] ).

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CLERK

FOOTNOTES

FN1. Plaintiff was the defendant in the English action..  FN1. Plaintiff was the defendant in the English action.