Franklin-Hood v. 80th Street, LLC , 28 N.Y.S.3d 864 ( 2016 )

Franklin-Hood v 80th St., LLC (2016 NY Slip Op 03114)

Franklin-Hood v 80th St., LLC

2016 NY Slip Op 03114

Decided on April 26, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 26, 2016
Sweeny, J.P., Saxe, Moskowitz, Gische, Webber, JJ.

925 152476/13

[*1]Robbin Franklin-Hood, Plaintiff-Respondent,

v

80th Street, LLC, Defendant-Respondent, Juan Castro, Defendant, Weber Farhat Realty Management Inc., Defendant-Appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellant.

The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for Robin Franklin-Hood, respondent.

Ropers Majeski Kohn Bentley P.C., New York (Elana T. Jacobs of counsel), for 80th Street I LLC, respondent.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered April 2, 2015, which denied the motion of defendant Weber Farhat Realty Management Inc. to dismiss the claims against it pursuant to CPLR 3211 and, in effect, denied as moot the conditional cross motion of defendant 80th Street I LLC (sued herein as 80th Street, LLC) to convert its cross claims to third-party claims, unanimously reversed, on the law, without costs, and both the motion and conditional cross motion granted.

Plaintiff's claims against Weber are barred both by Executive Law § 297(9) (see Horowitz v Aetna Life Ins., 148 AD2d 584, 585 [2d Dept 1989]) and res judicata (see Zarcone v Perry, 78 AD2d 70, 76, 78-79 [2d Dept 1980], affd 55 NY2d 782 [1981], cert denied 456 US 979 [1982]; see also O'Brien v City of Syracuse, 54 NY2d 353, 356-358 [1981]). With the dismissal of the complaint as against Weber, 80th Street's cross claims against Weber should be converted into a third-party action (see e.g. Eddine v Federated Dept. Stores, Inc., 72 AD3d 487 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 26, 2016

CLERK