dismissing causes of action because individual plaintiffs lacked authority to sue on partnership's behalfSummary of this case from Cement Masons Local 780 Pension Fund v. Leonard Schleifer, George Yancopoulos, Charles Baker, Arthur Ryan, Eric Shooter, George Sing, Marc Tessier-Lavigne, Michael Brown, Robert Ingram, Alfred Gilman, Joseph Goldstein, Christine Poon, P. Roy Vagelos, Regeneron Pharm., Inc.
June 15, 2000.
Order, Supreme Court, New York County (Harold Tompkins, J.), entered July 9, 1999, which granted defendants' motion to dismiss the complaint and awarded sanctions in their favor in the amount of $2,500, unanimously modified, on the law and the facts, to deny the motion with respect to plaintiffs' third cause of action and to reinstate that cause, and to vacate the award of sanctions, and otherwise affirmed, without costs.
Pro Se Lawrence A. Omansky, for plaintiffs-appellants.
William J. Ferrall, for defendants-respondents.
Before: Rosenberger, J.P., Tom, Mazzarelli, Andrias, Saxe, JJ.
The complaint should not have been dismissed on grounds of collateral estoppel and res judicata since the prior dismissal was not on the merits (see, Hodge v. Hotel Empls. Rest. Empls. Union, 269 A.D.2d 330, 703 N.Y.S.2d 184). However, dismissal of the first and second causes of action, stemming from damages allegedly sustained by the partnership and condominium, was warranted pursuant to CPLR 3211(a)(3) since the individual plaintiffs were without authority to sue on the behalf of the partnership and condominium. On the other hand, the third cause of action, in which the individual plaintiffs seek direct relief on their own behalf, is not subject to CPLR 3211(a)(3) dismissal and was not otherwise subject to dismissal on defendants' prejoinder motion to dismiss.
The award of sanctions, based on the motion court's erroneous belief that collateral estoppel and res judicata barred this action, should be vacated.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.