JOHANSEN v. GILLEN LIVING TRUST

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Supreme Court, Appellate Division, Second Department, New York.

Ronald JOHANSEN, et al., appellants, v. GILLEN LIVING TRUST, et al., respondents.

Decided: June 23, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ. John T. McCarron, P.C., Melville, N.Y., for appellants. Charles G. Mills, Glen Cove, N.Y., for respondents.

In an action, inter alia, for specific performance of an option to purchase certain real property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated April 22, 2008, as denied their motion for a preliminary injunction and granted that branch of the defendants' cross motion which was to dismiss the complaint pursuant to CPLR 3211(a).

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The doctrine of res judicata provides that “as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action” (Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328;  see Matter of People v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122, 863 N.Y.S.2d 615, 894 N.E.2d 1;  Sandhu v. Mercy Med. Ctr., 54 A.D.3d 928, 864 N.Y.S.2d 124;  Barbieri v. Bridge Funding, 5 A.D.3d 414, 772 N.Y.S.2d 610).   Here, each cause of action pleaded by the plaintiffs was determined on the merits by the Supreme Court in a prior action, either as a primary or alternative ground (see Matter of People v. Applied Card Sys., Inc., 11 N.Y.3d at 122, 863 N.Y.S.2d 615, 894 N.E.2d 1;  Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d at 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328;  Sandhu v. Mercy Med. Ctr., 54 A.D.3d 928, 864 N.Y.S.2d 124).   Furthermore, the plaintiffs in the instant action were in privity with the plaintiff in the prior action, as the plaintiffs herein exercised control over the prior action and ensured that their interests were represented therein (see Buechel v. Bain, 97 N.Y.2d 295, 304-305, 740 N.Y.S.2d 252, 766 N.E.2d 914;  Evergreen Bank v. Dashnaw, 246 A.D.2d 814, 816-817, 668 N.Y.S.2d 256;  cf. Green v. Santa Fe Indus., 70 N.Y.2d 244, 253-254, 519 N.Y.S.2d 793, 514 N.E.2d 105).   Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.

In light of the foregoing determination, the plaintiffs' remaining contentions have been rendered academic.

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