Car Park Systems of New York Inc. v. Ull , 154 A.D.3d 444 ( 2017 )

Car Park Sys. of N.Y. Inc. v Ull (2017 NY Slip Op 06986)

Car Park Sys. of N.Y. Inc. v Ull

2017 NY Slip Op 06986

Decided on October 5, 2017

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 October 5, 2017
Acosta, P.J., Renwick, Webber, Oing, Moulton, JJ.

650777/15 -4605 4604 4603

[*1]Car Park Systems of New York Inc., et al., Plaintiffs-Appellants,

v

Richard Ull, et al., Defendants-Respondents.

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Anna M. Plazza of counsel), for appellants.

Moritt Hock & Hamroff LLP, Garden City (Robert S. Cohen of counsel), for Richard Ull, respondent.

Rosenberg Calica & Birney LLP, Garden City (John S. Ciulla of counsel), for Jeffrey Ull, respondent.

Smith, Gambrell & Russell, LLP, New York (Donald L. Rosenthal of counsel), for Jennifer Ull, respondent.

Judgments, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 19 and 29, 2016, dismissing the complaint, unanimously affirmed, without costs.

The motion court correctly found that the order dismissing a prior complaint barred the instant complaint on the ground of res judicata, because the determination in the first action that plaintiffs could not demonstrate reasonable reliance to support their fraud claim was a determination on the merits (see Coutsodontis v Peters, 39 AD3d 274, 275 [1st Dept 2007]). In addition, we find that dismissal of the conversion claim as time-barred in the prior action also barred the fraud claim in the instant action (see Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1 [1st Dept 2000]). The fraud claim is merely incidental to the conversion claim, as the gravamen of the wrong is the alleged diversion of funds (see Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 119-121 [1st Dept 1985], affd 67 NY2d 981 [1986]).

We have considered plaintiffs' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 5, 2017

CLERK