Jaber v. Elayyan

191 A.D.3d 964

142 N.Y.S.3d 601

Juber JABER, plaintiff,

v.Munzer ELAYYAN, et al., respondents,Farhoud Jaber, appellant.

2018–08472

Index No. 151161/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 7, 2020

February 24, 2021

The Aboushi Law Firm, LLC, New York, N.Y. (Aymen A. Aboushi of counsel), for appellant.

McKool Smith, New York, N.Y. (James H. Smith and Virginia I. Weber of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to impose a constructive trust and for a judgment declaring that the plaintiff is the equitable owner of a certain parcel of real property, the defendant Farhoud Jaber appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated June 8, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Munzer Elayyan and 12 Whitwell Realty Corp. which was pursuant to CPLR 3211(a)(5) to dismiss the cross claims asserted by the defendant Farhoud Jaber against the defendant Munzer Elayyan based on the doctrine of collateral estoppel.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Munzer Elayyan and 12 Whitwell Realty Corp. which was pursuant to CPLR 3211(a)(5) to dismiss the cross claims asserted by the defendant Farhoud Jaber against the defendant Munzer Elayyan based on the doctrine of collateral estoppel is denied.

The plaintiff, Juber Jaber (hereinafter Juber), commenced this action against the defendants Munzer Elayyan, 12 Whitwell Realty Corp. (hereinafter Whitwell), and Farhoud Jaber (hereinafter Farhoud), alleging that Juber is the equitable owner of a certain parcel of real property located in Staten Island (hereinafter the subject property). The subject property is owned by Whitwell. Farhoud, individually and purportedly on behalf of Whitwell, filed cross claims against Elayyan, alleging, inter alia, that Farhoud was the sole owner and shareholder of Whitwell and, pursuant to an agreement with Juber, Elayyan had no ownership interest in Whitwell and had agreed to form Whitwell so that Farhoud could be its owner. The cross claims sought, among other things, a judgment declaring that Farhoud is the sole rightful owner and shareholder of Whitwell, and that Elayyan has no authority to act on Whitwell's behalf.

By notice of motion dated March 12, 2018, Elayyan and Whitwell moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the cross claims on the ground that the subject matter of the cross claims had already been litigated and decided in a pending action commenced by Farhoud and others in November 2016 in the Supreme Court, New York County, under Index No. 656160/16 (hereinafter the New York action). Specifically, Elayyan and Whitwell relied on an order dated May 3, 2017, entered in the New York action, which had denied a motion by Farhoud and Whitwell to temporarily restrain Elayyan from interfering with the use of the subject property, finding that Farhoud lacked standing to sue on behalf of Whitwell, as he had failed to establish that he was a shareholder of Whitwell, and also lacked standing to seek injunctive relief on his own behalf since he was neither an owner nor an occupant of the subject property.

By order date June 8, 2018, the Supreme Court, inter alia, granted that branch of the motion of Elayyan and Whitwell which was pursuant to CPLR 3211(a)(5) to dismiss the cross claims asserted by Farhoud and purportedly asserted by Whitwell. Farhoud appeals from so much of the order as directed dismissal of the cross claims asserted by him in...