| Kuper v Lask |
| 2008 NY Slip Op 51409(U) [20 Misc 3d 129(A)] |
| Decided on July 16, 2008 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from that portion of an order
of the Small Claims Part of the Civil Court of the City of New York, New York
County (Debra Rose Samuels, J.), entered May l9, 2006, which denied defendant's motion to
dismiss the action.
Per Curiam.
Order (Debra Rose Samuels, J.), entered May l9, 2006, insofar as appealed from, reversed, without costs, and judgment directed in favor of defendant dismissing the action.
The doctrine of collateral estoppel requires dismissal of this small claims action seeking reimbursement of a retainer fee previously paid to defendant by nonparty Furon Construction, Inc., a corporation which is now dissolved. The corporation's prior small claims action, seeking recovery of the same fees, was dismissed for lack of capacity to sue since it had failed to pay franchise taxes. In these circumstances, plaintiff, as principal and shareholder of the defunct corporation, should not be allowed to pursue this identical claim in place of the corporation (see Matter of Shea, 309 NY 605, 617 [1956]; see also CCA 1808).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 16, 2008