Nissan Motor Acceptance Corp. v Scialpi (2011 NY Slip Op 50415(U))

Nissan Motor Acceptance Corp. v Scialpi

2011 NY Slip Op 50415(U) [30 Misc 3d 1240(A)]

Decided on March 1, 2011

Supreme Court, Nassau County

Driscoll, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Memorandum of Law in Support...................................................x

Affirmation in Opposition and Exhibits.........................................x

Affidavit in Opposition/Support and Exhibits...............................x

Notice of Motion................................................................................x

Affidavit in Support and Exhibits...................................................x

Memorandum of Law in Support....................................................x

Affirmation in Opposition and Exhibits.........................................x

Memorandum of Law in Opposition...............................................x

Affirmation in Further Support......................................................x

This matter is before the Court for decision on 1) the motion filed by Defendants GS Autoplex LLC d/b/a Garden State Honda ("GS") and Don Lia ("Lia") on March 25, 2010, 2) the cross motion filed by Plaintiff Nissan Motor Acceptance Corporation ("NMAC" or "Plaintiff") on June 11, 2010, 3) the motion filed by Defendant Thomas Scialpi ("Scialpi") on November 8, 2010 and 4) the Order to Show Cause filed by Plaintiff on November 10, 2010, all of which were submitted on November 29, 2010. For the reasons set forth below, the Court 1) grants the motion of Defendants GS and Lia and dismisses the Amended Verified Complaint as against them; 2) denies Plaintiff's cross motion; 3) grants the motion of Defendant Scialpi and dismisses the Amended Verified Complaint as against him; and 4) denies Plaintiff's Order to Show Cause.

Defendants GS and Lia move for an Order, pursuant to CPLR § 3212, granting summary judgment and dismissing the Amended Verified Complaint ("Amended Complaint") (Ex. A to Hall Aff. in Supp.) against those Defendants.

Plaintiff moves for an Order 1) pursuant to CPLR § 3212(e), awarding Plaintiff partial summary judgment against Defendant GS on its cause of action for conversion against GS; and

2) pursuant to CPLR § 3025, awarding Plaintiff leave to amend its Amended Complaint as to its claim for punitive damages against all Defendants.

Defendant Scialpi moves for an Order, pursuant to CPLR § 3212, granting summary judgment and dismissing the Amended Complaint against him.

Plaintiff moves for an Order 1) striking the Answer of Defendant Scialpi, due to his alleged refusal to respond to questions posed by Plaintiff's counsel at Scialpi's deposition or, alternatively, compelling Scialpi to appear for the taking of his continued deposition and to respond to all questions posed by Plaintiff's counsel; and 2) staying the motion for summary judgment filed by Scalpi, pending an Order granting the relief sought by Plaintiff in its Order to Show Cause.

In this action, Plaintiff alleges certain improprieties by Defendants with respect to vehicles financed by Plaintiff NMAC.

On or about April 4, 2006, the Sim Fryson Motor Company ("Dealership") and NMAC entered into an Automotive Wholesale Financing and Security Agreement ("Financing Agreement") (Ex. 1 to Am. Compl.). Under the terms of the Financing Agreement, NMAC [*3]"provided loans for automobiles, equipment, and parts to the Dealership in exchange for payment as units of inventory were sold in the ordinary course of the Dealership's business" (Am. Compl. at ¶ 10). Pursuant to Section 5.1.3 of the Financing Agreement, a default can occur upon "[a]ny default by Dealer or any Dealer Affiliate under any present or future agreement with NMAC." Pursuant to Section 2.4 of the Financing Agreement, "[a]s security for the repayment of the Indebtedness and performance of Dealer's other obligations in connection with this Agreement," the Dealership granted NMAC a security interest in certain assets, including "all automobiles" (Id. at § 2.4.1).

On or about April 12, 2006, the Dealership and NMAC executed a Dealer Capital Loan and Security Agreement ("Loan Agreement") (Ex. 2 to Am. Compl.), pursuant to which NMAC agreed to lend the Dealership up to $500,000. In accordance with the terms of the Loan Agreement, NMAC was granted a security interest identical to that contained in the Financing Agreement. The security interests in the collateral as described in both the Financing Agreement and Loan Agreement were perfected by the NMAC by the filing of a UCC financing statement on July 23, 2006 and subsequent amendments.

On April 14. 2006, Scialpi executed a Continuing Guaranty Agreement ("Guaranty") (Ex. 3 to Am. Compl.) which provided that he "unconditionally and irrevocably guarantee(s) to [NMAC] * * * the full and prompt performance and payment of all present and future liabilities of [the Dealership] to [NMAC] irrespective of their nature or the time they arise, and

* * * the due and punctual performance and observance of all agreements and indemnities of [the Dealership] to [NMAC]" (Guaranty at p. 1).

In 2007, dealerships owned by Scialpi began to experience financial difficulties. The Complaint outlines the Dealership's default on its obligations in May of 2007, as well as the default of GS, previously an affiliate of the Dealership. Plaintiff alleges that, following these defaults, NMAC and the Dealership entered into Forbearance Agreements in July and December of 2007 (Exs. 4 and 5 to Am. Compl.). Pursuant to the July Forbearance Agreement, the Dealership and NMAC agreed that, notwithstanding the default by GS, the Financing Agreement would be extended until the earliest of either the sale of GS or until June 30, 2008. The July Forbearance Agreement also provided that Defendants Lia and Laraine Castellano ("Castellano") would each provide certified funds in the amount of $250,000, and describes Lia's contemplated asset purchase of GS. On December 18, 2007, Lia purchased the assets of GS and currently operates that dealership. Lia is the uncle of Scialpi, and Castellano ^[FN1] is the sister of Lia and the mother of Scialpi.

In the December Forbearance Agreement, the parties agreed to extend the date of the termination of the July Forbearance Agreement to December 31, 2008. This Forbearance Agreement also provided that, at the end of the extended forbearance period, any amounts owing under the Financing Agreement "shall mature and become automatically due and payable to NMAC in their entirety." By letter dated January 22, 2009 (Ex. 7 to Am. Compl.), NMAC advised Scialpi, as President of the Dealership, that 1) a wholesale inventory conducted on January 21, 2009 "resulted in the inability of the Dealership to pay NMAC for forty-four (44) units in the amount of $957,894.75;" and 2) the Dealership owed NMAC a total of [*4]$1,983,339.25 for past due obligations including Mortgage and Capital Loan payments.

Between December 2008 and January 2009, the three transactions that form the basis of the underlying action took place by and between the Dealership and GS. The first of these transactions took place on December 26, 2008, when the Dealership sold 18 vehicles to GS. This purchase was funded by Defendant, Shoreline Transit, Inc. ("Shoreline"), which wired the sum of $441,000 into the Dealership's account at Community Trust Bank (Ex. K to Hall Aff. in Supp.). GS repaid Shoreline via check dated December 26, 2008 (Ex. L to Hall Aff. in Supp.).

The second of these transactions occurred on January 15, 2009, at which time the Dealership sold an additional 20 vehicles to GS for the purchase price of $447,697.46. Again, Shoreline financed this sale by wiring funds into the Dealership's account at Community Trust Bank and GS repaid Shoreline by check for the amount provided (See Hall Aff. in Supp. at Exs. O, P). The third and final of these transactions occurred within the following week, at which time the Dealership sold 29 additional vehicles to GS for the purchase price of $649,680.93. In connection with this transaction, Shoreline advanced the requisite funds to GS, and GS subsequently wired the sum of $649,680.93 into the Dealership's account at Town Square Bank in Kentucky (See Hall Aff. in Supp. at Exs. S, T). GS reimbursed Shoreline by providing a series of checks issued in January and February of 2009 (Ex. E toHall Reply Affidavit).

Scialpi, as President of the Dealership, breached the Financing Agreement by failing to hold the proceeds from the sale of vehicles sold to GS and Lia in trust, as required by the Agreement, which he personally guaranteed, and failing to make payment to Plaintiff for vehicles sold and/or transferred.

The Defendants participated in a scheme to defraud Plaintiff by knowingly diverting funds rightfully belonging to Plaintiff from the operating account maintained in the Community Trust Bank for the Dealership, and diverting funds to a bank account unknown to Plaintiff.

Third Cause of Action: Conversion against GS and Lia ("Lia Defendants"), and Scialpi

Scialpi and the Dealership transferred forty seven (47) vehicles from the Dealership to the Lia Defendants, thereby denying Plaintiff the right to possess the vehicles, and have refused to return, or provide payment for, those vehicles.

Fourth Cause of Action: Conspiracy to Commit a Tortious Act against all Defendants

Defendants conspired to wrongfully transfer vehicles from the Dealership to the Lia Defendants without providing Plaintiff with the payment to which it was entitled, which payment was secured by the filing of the appropriate statutory lien.

1) Scialpi, Castellano and Shoreline manipulated the bank account maintained by the Dealership at the Community Trust Bank by making deposits into that account designed to create the impression that the Dealership was more solvent than it actually was; 2) Plaintiff subsequently made Electronic Invoice Presentment and Payment ("EIPP") withdrawals from the account representing payments owed to Plaintiff by the Dealership for vehicles sold; and 3) with knowledge of Plaintiff's withdrawals, Scialpi wrote a check from the account to either Shoreline or the Lia Defendants, resulting in the account being overdrawn and many of the EIPP [*5]withdrawals being returned unsatisfied.

As a result of Defendants' fraudulent acts, 47 vehicles in which Plaintiff had a duly perfected lien were wrongfully transferred from the Dealership to GS without Plaintiff receiving payment for those vehicles, resulting in the unjust enrichment of Defendants.

The Lia Defendants have wrongfully retained the vehicles identified in Exhibits 8 and 9 of the Amended Complaint, and Plaintiff seeks an Order entitling it to immediate possession of those vehicles.

Plaintiff seeks punitive damages based on the allegedly intentional, wanton and malicious conduct of the Defendants.

On or about February 2, 2009, NMAC filed a Verified Compliant ("Federal Complaint") in the United States District Court for the Eastern District of Kentucky in an action titled NMAC v. Sim Fryson Motor Company, Inc., Thomas Scialpi, Dennis Cartmille and Giant Real Estate of Ashland, LLC, Docket No. 09-00011 ("Federal Action") (Ex. A to Scialpi Aff. in Supp.). The Federal Complaint contained causes of action sounding in breach of contract and conversion and also demanded judgment in relation to the Guaranty signed by Scialpi. The Federal Complaint alleges, inter alia, that on April 4, April 12 and April 14, 2006, Scialpi, in his capacity as President of the Dealership, executed the Financing Agreement and Loan Agreement, as well as the Guaranty (id. at ¶¶3,10,11,12). The Federal Complaint further alleged, inter alia, that 1) the Dealership defaulted on its obligations under the various agreements by selling vehicles and failing to remit payment to NMAC under the terms of the Financing Agreement (¶ 14);2) NMAC sent the January 22, 2009 letter to Scialpi, informing him of the results of its audit and the sums owed by the Dealership and Defendants have failed to pay those amounts (¶¶ 21-25); 3) in violation of the various agreements, the Dealership transferred vehicles to GS (¶¶ 26-28); and 4) Defendants are liable for a) breach of contract with respect to the Financing Agreement, Loan Agreement, Sign Agreement and Guaranty Agreements, b) breach of the Guaranty executed by Scialpi and co-defendant Dennis Cartmille ("Cartmille"), and c) conversion based on Defendants' improper transfer of the vehicles to GS in a manner that interfered with Plaintiff's possession of the vehicles, and Defendants' failure to return the vehicles despite demand (¶¶ 36-63). On June 4, 2009, NMAC filed a First Amended Complaint (Ex. C to Scialpi Aff. in Supp.), which specifically incorporated the allegations contained in the Federal Complaint and added a cause of action for replevin. The new cause of action included allegations regarding the allegedly improper deposits into the Town Square Bank and the possible improper diversion of funds to Shoreline.

On January 29, 2010, NMAC moved for summary judgment in the Federal Action as to the issue of Scialpi's liability stemming from his personal guaranty of the Dealership's obligations [*6]under the Financing Agreement and Loan Agreement (Ex. E to Scialpi Aff. in Supp.). By Memorandum Opinion and Order dated June 30, 2010 ("Federal Decision") (Ex. F to Scialpi Aff. in Supp.) the Federal District Court granted NMAC's motion for summary judgment on liability as to Scialpi and Cartmille. On July 13, 2010 a Judgment was entered against Scialpi and Cartmille, in favor of NMAC, in the amount of $2,841,800.36 (Ex. G to Scialpi Aff. in Supp.).

With respect to the cause of action sounding in fraud, the Lia Defendants submit that, as they had neither any interest in or control over the funds on deposit in the Community Trust Bank, they could not have diverted any funds from that account. Moreover, given the lack of evidence as to any misrepresentations of fact made by anyone at GS, dismissal of this cause of action is appropriate.

With respect to the cause of action based on conversion, the Lia Defendants argue that GS was a buyer in the ordinary course of business, which took possession of the subject vehicles free of NMAC'S security interest. Specifically, the evidence clearly demonstrates that GS paid factory cost pricing for the subject vehicles, received the relevant Manufacturer's Statement of Origin for those vehicles, and duly remunerated Shoreline for its financing of the transactions. Accordingly, the Lia Defendants had rightful possession of the subject vehicles and the cause of action against them for conversion, as well as the causes of action for unjust enrichment and replevin, should be dismissed. The Lia Defendants submit, further, that there is no evidence that the moving Defendants were aware of NMAC's perfected security interest in the subject vehicles. The sales had already been completed prior to NMAC's letter of January 23, 2009 informing GS of that interest and, therefore, the letter does not demonstrate the Defendants' knowledge of the security interest at a relevant time.

With respect to the causes of action for conspiracy, the Lia Defendants argue that these actions must be dismissed because New York does not recognize a separate cause of action in conspiracy. They submit, further, that dismissal of the eighth cause of action for punitive damages is appropriate because New York does not recognize a separate cause of action for punitive damages.

Plaintiff opposes the motion by the Lia Defendants, submitting, inter alia, that 1) the record demonstrates numerous questions of fact, precluding an award of summary judgment;

2) with respect to the causes of actions for fraud, conspiracy to commit fraud and conspiracy to commit a tortious act, due to the familial relationship existing among the Defendants, and the fact that Defendants Lia and Castellano previously rendered significant financial assistance to Scialpi, questions remain as to whether all of the Defendants intentionally concealed their conduct in an effort to compromise the Plaintiff's perfected security interest in the vehicles;

3) as to those causes of action sounding in conversion, unjust enrichment and replevin, due to the irregular nature of the transactions at issue, questions remain as to whether the Defendants acted in concert to convert the subject vehicles, and whether GS took possession of the vehicles subject to NMAC's perfected security interest; 4) with respect to the first and second transactions, the transfer of vehicles was not a dealer to dealer transaction, but rather a transfer from the Dealership to Shoreline which, in turn, sold the vehicles to GS and these transactions were expressly precluded by the Financing Agreement; 5) as GS ultimately purchased the subject [*7]vehicles from Shoreline, GS was not a buyer in the ordinary course of business, and took possession of the vehicles subject to NMAC's security interest; 6) as to the third transaction, in light of the fact that GS wired the funds into an account at Town Square Bank, of which NMAC had no knowledge, and not Community Trust Bank, the financial institution involved in the prior two transactions, "the irregular nature of this act is apparent;" (Goldberg Aff. in Opp at pp. 12-13); 7) there is no evidence that GS ever repaid anyone for the vehicles it obtained, and GS has not demonstrated that it repaid Shoreline for its financing of the third transaction; and 8) the Defendants' motion application is premature and should be denied pending further discovery.

Defendant Scialpi submits that, as the Federal Action was predicated on the same transactions and facts as alleged in the underlying action, the Court should dismiss the Amended Complaint based on the doctrine of res judicata. Scialpi contends that, notwithstanding the fact that Scialpi did not oppose NMAC's motion in the Federal Action, the Federal Decision was rendered after the Federal Court considered the entire record before it and, therefore, was a decision on the merits that precludes the instant action.

Plaintiff opposes Scialpi's motion, and moves for an Order staying the motion pending an Order either compelling his attendance at a deposition or striking his Answer. Plaintiff argues that the doctrine of res judicata is inapplicable, inter alia, because Defendants Lia, Castellano and GS were not named in the Federal Action. Plaintiff also submits that, in light of his invocation of his Fifth Amendment rights during his examination before trial, Scialpi effectively prevented NMAC from obtaining facts material to the prosecution of this action. Thus, Plaintiff submits, the Court should stay the instant application pending Scialpi's meaningful attendance at a deposition, or strike his Answer in light of his failure to participate in discovery.

Pursuant to CPLR § 3212(e), summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just. The court may also direct 1) that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action; or 2) that the entry of the summary judgment shall be held in abeyance pending the determination of any remaining cause of action.

To grant summary judgment, the court must find that there are no material, triable issues of fact, that the movant has established his cause of action or defense sufficiently to warrant the court, as a matter of law, directing judgment in his favor, and that the proof tendered is in admissible form. Menekou v. Crean, 222 AD2d 418, 419-420 (2d Dept 1995). If the movant tenders sufficient admissible evidence to show that there are no material issues of fact, the burden then shifts to the opponent to produce admissible proof establishing a material issue of fact. Id. at 420. Summary judgment is a drastic remedy that should not be granted where there is any doubt regarding the existence of a triable issue of fact. Id.

The essential elements of a cause of action sounding in fraud are 1) a misrepresentation or a material omission of fact which was false and known to be false by defendant, 2) made for the purpose of inducing the other party to reply upon it, 3) justifiable reliance of the other party on the misrepresentation or material omission, and 4) injury. Colasacco v. Robert E. Lawrence Real [*8]Estate, 68 AD3d 706 (2d Dept. 2009), quoting Orlando v. Kukielka, 40 AD3d 829, 831 (2d Dept., 2007).

CPLR 3016(b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake....the circumstances constituting the wrong shall be stated in detail." The complaint must sufficiently detail the allegedly fraudulent conduct. See Polonetsky v. Better Homes Depot, Inc. 97 NY2d 46, 55 (2007).

To establish a claim for conversion, a plaintiff must show that he had an immediate superior right of possession to the property and the exercise by defendants of unauthorized dominion over the property in question to the exclusion of plaintiff's rights. Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 AD2d 384, 385 (1st Dept. 1992).

To establish a cause of action for breach of contract, one must demonstrate: 1) the existence of a contract between the plaintiff and defendant, 2) consideration, 3) performance by the plaintiff, 4) breach by the defendant, and 5) damages resulting from the breach. Furia v. Furia, 116 AD2d 694 (2d Dept. 1986).

The essential inquiry in any action for unjust enrichment is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. Such a claim is undoubtedly equitable and depends upon broad considerations of equity and justice. Generally, courts will determine whether 1) a benefit has been conferred on defendant under mistake of fact or law; 2) the benefit still remains with the defendant; and 3) the defendant's conduct was tortious or fraudulent. Paramount Film Distributing Corp. v. New York, 30 NY2d 415, 421 (1972). Plaintiff may not maintain an action for unjust enrichment where the matter in dispute is governed by an express contract. Scavenger, Inc. v. Interactive Software Corp., 289 AD2d 58 (1st Dept. 2001).

New York Uniform Commercial Code ("UCC") §1-201(9), provides, in relevant part, as follows:

Additionally, UCC §9-320(a) provides, that "a buyer in ordinary course of business * * *, takes free of a security interestcreated by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence."

There is no independent tort of civil conspiracy recognized in New York and such a claim may only be alleged to connect the actions of separate defendants with an actionable injury and to show these acts flowed from a common scheme or plan. Schlotthauer v. Sanders, 153 AD2d 729, 731 (2d Dept. 1989), app. den., 75 NY2d 704 (1990), citing SRW Associates v. Bellport Beach Property Owners, 129 AD2d 328 (2d Dept. 1987). [*9]

No separate cause of action for punitive damages lies for pleading purposes. Paisley v. Coin Device Corp., 5 AD3d 748, 750 (2d Dept. 2004). A demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action. Yong Wen Mo v. Gee Ming Chan, 17 AD3d 356, 359 (2d Dept. 2005), quoting Rocanova v. Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 (1994).

Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action. Parker v. Blauvelt Volunt. Fire Co., Inc., 93 NY2d 343, 347 (1999), citing Matter of Reilly v. Reid, 45 NY2d 24, 27 (1978) and Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304, 306-307 (1929). As a general rule, once a claim is brought to a final conclusion, other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy. Id., quoting O'Brien v. City of Syracuse, 54 NY2d 353, 357 (1981). See, e.g., Smith v. Russell Sage College, 54 NY2d 185 (1981) (second action precluded where, although second action was "embellished by later events," two actions originated from identical agreement and involved same time period, chief participants and claims).

With respect to the causes of action based on fraud, the record is devoid of evidence that the moving Defendants either diverted funds from the accounts owed by the Dealership or had any control over those funds that would provide them with the opportunity to effectuate such a diversion. Moreover, Plaintiff has not identified any statements or misrepresentations made by either Lia or any representative of GS on which NMAC relied. Additionally, Plaintiff has not alleged the existence of any fiduciary relationship between NMAC and the moving defendants, that would trigger a duty to disclose. Under the circumstances, the fraud allegations are insufficient and the Court grants the motion to dismiss the second cause of action for fraud. See Small v. Lorillard Tobacco Co., Inc., 94 NY2d 43 (1999) (trial court properly dismissed complaint where plaintiff failed to allege specific nature or content of purported misrepresentation, his justifiable reliance thereon, and/or the existence of a relationship between the parties that would create a duty to disclose the purported concealed facts).

The Court also concludes that the moving Defendants have established their entitlement to summary judgment dismissing the causes of actions based on conversion, unjust enrichment and replevin. The undisputed facts demonstrate that the moving Defendants had rightful possession of the subject vehicles, which were purchased from the Dealership in the ordinary course of business, for factory cost price. In addition, the documentation provided reflects that Shoreline was fully reimbursed for its financing of the transactions. Moreover, the terms of the Financing Agreement expressly permit the sale of vehicles from the Dealership to another car dealership, and do not limit the number of cars which may comprise a given transaction or circumscribe the geographic location in which the receiving dealer must reside. In light of the foregoing, the Court dismisses the third cause of action for conversion, the sixth cause of action for unjust enrichment and the seventh cause of action for replevin against the moving [*10]Defendants. See, e.g., Batsidis v Batsidis, 9 AD3d 342 (2d Dept. 2004) (trial court properly dismissed complaint where plaintiffs failed to show that they had title, possession or control of funds alleged to have been converted, or that they had a superior right to the property at issue).

In light of the Court's dismissal of the underlying, substantive causes of action, the Court also dismisses the fourth cause of action alleging conspiracy to commit a tortious act, the fifth cause of action alleging conspiracy to commit Fraud, as well as the eighth cause of action seeking punitive damages.

In accordance with the foregoing, the Court denies, as moot, Plaintiff's cross-motion for summary judgment on the third cause of action sounding in Conversion, and an Order seeking leave to amend its complaint.With respect to Scialpi's motion to dismiss, the Court concludes that the instant action against Scialpi is barred by the doctrine of res judicata based on the Court's determination that the claims in the Federal Action and the action sub judice both involve the liability of Scialpi to NMAC based on the same series of transactions. In the Federal Action, Plaintiff sought to hold Scialpi liable based on the default of the Dealership with respect to the Financing Agreement and Loan Agreement, and Scialpi's personal guaranty of the Dealership's performance of its duties and obligations pursuant to those agreements. In the matter sub judice, the Amended Complaint similarlypredicates Scialfi's liability on the Dealership's defaults under the Financing Agreement and the Loan Agreement. Notwithstanding the fact that the Amended Complaint names certain defendants who were not named in the Federal Action, Plaintiff is clearly predicating Scialpi's liability on the defaults of the Dealership with respect to its obligations under the Financing Agreement and Loan Agreement. Thus, while the instant action may be "embellished by later events" by, inter alia, the addition of the other Defendants, the Federal Action and the instant action originate from the same agreements and involve strikingly similar allegations.

In light of the foregoing, the Court concludes that the instant action against Scialpi is barred by the doctrine of res judicata and grants Scialpi's motion for summary judgment dismissing the Amended Complaint against him. Accordingly, the Court denies, as moot, Plaintiff's application for an Order staying Scialpi's motion pending the issuance of an Order compelling his attendance at an examination before trial, or striking his Answer.