Frenk v. Solomon , 998 N.Y.S.2d 42 ( 2014 )

Frenk v Solomon (2014 NY Slip Op 08376)

Frenk v Solomon

2014 NY Slip Op 08376

Decided on December 2, 2014

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 December 2, 2014
Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.

13642 650298/13

[*1] Margit Frenk, Plaintiff-Respondent,

v

Yris Rabenou Solomon, etc., et al., Defendants-Appellants.

Andrews Kurth LLP, New York (Joseph A. Patella of counsel), for appellants.

Tarter Krinsky & Drogin LLP, New York (Debra Bodian Bernstein of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 23, 2013, on the record of a hearing dated December 18, 2013, so-ordered by the court on January 17, 2014, and corrected by stipulation entered January 27, 2014, which, insofar as appealed from, denied defendants' motion to dismiss the declaratory judgment, replevin, conversion, bailment, constructive trust, accounting, and unjust enrichment causes of action, unanimously affirmed, without costs.

Given plaintiff's allegations raising the inference that the stipulation of discontinuance with prejudice and the general release of claims in a prior action were not intended to encompass the instant claims, and her allegations of fraudulent inducement raising equitable considerations, the court correctly declined to grant defendants' motion to dismiss the causes of action indicated above at this pre-answer stage based on the doctrine of res judicata or enforcement of the general release (see Mangini v McClurg , 24 NY2d 556, 562 [1969]; Singleton Mgt. v Compere , 243 AD2d 213, 216 n * [1st Dept 1998]; Dolitsky's Dry Cleaners v YL Jericho Dry Cleaners , 203 AD2d 322 [2d Dept 1994]). Given the outstanding issues as to the viability and scope of the instant claims, the court correctly declined to dismiss the claims of replevin and conversion on statute of limitations grounds.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 2, 2014

CLERK