Fischer v Crossard Realty Co., Inc., 2009 NY Slip Op 04968 (App. Div., 1st, 2009)
An issue of fact as to whether defendant had notice of the claimed
misleveling is raised by the elevator's service records, as clarified
by the testimony of the elevator maintenance company's president and
the affidavit of plaintiff's expert. Defendant's argument that
plaintiff's testimony shows that she fell not because of any
misleveling, but when she tried to quickly move out of the way of
elevator doors that allegedly were closing prematurely and frightened
her, was improperly raised for the first time in its reply papers
before the motion court, and
we decline to consider it (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]).
Johansen v Gillen Living Trust, 2009 NY Slip Op 05295 (App. Div., 2nd, 2009)
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 NY2d 481, 485; see Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 122; Sandhu v Mercy Med. Ctr., 54 AD3d 928; Barbieri v Bridge Funding,
5 AD3d 414). 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 NY3d at 122; Gramatan Home Invs. Corp. v Lopez, 46 NY2d at 485; Sandhu v Mercy Med. Ctr.,
54 AD3d 928). 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 NY2d 295, 304-305; Evergreen Bank v Dashnaw, 246 AD2d 814, 816-817; cf. Green v Santa Fe Indus.,
70 NY2d 244, 253-254). 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.
Atlantic Credit & Fin., Inc. v Rivera, 2009 NY Slip Op 51148(U) (App. Term, 2nd, 2009)
The appeal from the order must be dismissed because the right of direct
appeal therefrom terminated upon the subsequent entry of a default
judgment in this action (see Matter of Aho, 39 NY2d 241 [1976]; Woodhaven Assoc., Inc. v Woodhaven Blvd. Rest., Inc., 46 AD3d 679 [2007]; Fordham Gen. Constr. Co., Inc. v White, 12 Misc 3d 127[A],
2006 NY Slip Op 50914[U] [App Term, 2d & 11th Jud Dists 2006]). We
note that a party may appeal from a judgment entered upon his default
for the purpose of bringing up for review a prior contested order which
necessarily affects the final judgment (see James v Powell, 19 NY2d 249 [1967]; Conserv Elec., Inc. v Tulger Contr. Corp., 26 AD3d 354 [2006]).
Uvaydov v Wexley, 2009 NY Slip Op 04893 (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion, upon the
defendant's cross motion and upon reviewing the appropriate factors, in
declining to exercise jurisdiction over that branch of the plaintiff's
motion which was to modify a prior custody order on the ground that New
York is an inconvenient forum and that California is a more appropriate
forum (see Domestic Relations Law § 76-f; Matter of Erlec v Johnson, 58 AD3d 730; Matter of Hall v Hall, 44 AD3d 771; Clark v Clark, 21 AD3d 1326).
The bold is mine.
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