Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff Legend Supermarket Inc.'s motion (hereinafter Legend) filed on March 20, 2014, under motion sequence number two, for an order pursuant to CPLR 3211 and 3212 dismissing the affirmative defenses and counterclaims asserted by the defendants, Cardo New York, LLC and John Cardo (hereinafter the Cardo defendants) based on the doctrine of res judicata.

- Notice of Motion [*2]

- Affirmation in support

- Exhibits I - II

- Affirmation in opposition

- Exhibits 1 - 15

- Reply affirmation

BACKGROUND

On August 19, 2013, Legend commenced the instant action by filing a summons with notice with the Kings County Clerk's office. By notice of appearance and demand for a complaint filed on August 30, 2013, the Cardo defendants appeared in the action. On September 16, 2013, Legend filed and served a complaint. The Cardo defendants interposed a verified answer and counterclaims dated October 1, 2013. On October 18, 2013, Legend replied to the Cardo defendants' counterclaims and joined issue.

Legend's complaint alleges twenty-seven allegations of fact in support of three causes of action. The first is for tortuous interference with an existing contract, the second is for tortuous interference with prospective business relationship, and the third is for unjust enrichment.

The Cardo defendants' have interposed an answer containing twelve affirmative defenses and seven counterclaims.

LAW AND APPLICATION

Pursuant to CPLR 3211 (b), a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit. "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2nd Dept 2008] see Butler v Catinella, 58 AD3d 145, 147—148 [2nd Dept 2008]).

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d [*3]320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated to lay bear his or her proof to demonstrate the existence of a triable issue of fact (Geffner v North Shore University Hosp., 57 AD3d 839, 841 [2nd Dept 2008]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"The doctrine of res judicata precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter" (Matter of Josey v Goord, 9 NY3d 386, 389 [2007], quoting Matter of Hunter, 4 NY3d 260, 269 [2005] see also Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action (see Matter of Reilly v Reid, 45 NY2d 24, 27 [1978]). It is blackletter law that a valid final judgment bars future actions between the same parties on the same cause of action (see Fitzgerald v Hudson Natl. Golf Club, 35 AD3d 533 [2nd Dept 2006]).

Legend has submitted in support of its motion an affirmation of its counsel, Angelo A. DiGangi; an affirmation of George Russo, a real estate attorney, and two annexed exhibits labeled I and II. DiGangi's affirmation contains five allegations of fact and demonstrates no personal knowledge of the facts alleged in the complaint or in his affirmation. Russo's affirmation contains five allegations of fact. Russo avers that he is a real estate attorney who participated in the negotiation of a lease between the parties and that he was present at the closing of same. He stated the following in the third paragraph of his affirmation:

That, the Contract terms and Closing held by court order of premise located at 1811 86th Street, Brooklyn, New York 11214 copies of which are annexed hereto; and the court order confirming the contract, see Exhibit I and II took place because the plaintiff was caused to repair, refurbish and renovations of the premises and the parties agreed to give the tenant the right to make all necessary repairs.

Setting aside and disregarding the grammatical construction of the third paragraph, the description of exhibit 1 and II is ambiguous and does not match the documents actually annexed. Exhibit I contains two documents. The first document is an uncertified copy of an order of the Civil Court of the City of New York, Kings County, dated December 11, 2013, issued by Judge Pamela Fisher (hereinafter the prior order). The prior order is from a matter bearing index number 100462/12 and contains Cardo New York, LLC, as the petitioner and Legend Supermarket Inc. as the respondent (hereinafter the prior proceeding). The prior order denies the petitioner's motion to vacate a stipulation. The second document is denominated a settlement term sheet. It is unclear whether the settlement term sheet is the stipulation referred to in the prior order. Exhibit II appears to be all the pleadings in the instant action. It is apparent that Russo was not [*4]referring to the pleadings in the instant action when he was attempting to describe exhibit II. It is unclear which document Russo was referring to when he stated in paragraph three that the "Contract terms and Closing ... copies of which are annexed hereto".

Legend seeks dismissal of the Cardo defendants' affirmative defenses and counterclaims pursuant to CPLR 3211 (b) and 3212 as barred under the doctrine of res judicata. To meet its burden under CPLR 3211 (b), Legend would have to conclusively establish that a valid final judgment on the merits existed from a prior action between the same parties involving the same subject matter. Although Legend submitted the prior order from the prior proceeding, Legend did not submit a copy of the pleadings of the prior proceeding. Without the pleading from the prior proceeding to compare with the instant complaint, there is no ability to determine whether they involve the same subject matter. Legend also did not establish that the subject order was a final judgment between the same parties. The prior order is not certified or authenticated by a party with personal knowledge. Furthermore, the instant action includes John Cardo as a defendant and the prior order does not name him as a party in the caption. The prior order denies the petitioner's motion to vacate a stipulation entered into between the petitioner and respondent. Legend's has offered no argument, explanation or admissible evidence demonstrating that the prior proceeding is the same cause of action as the instant action for tortuous interference and unjust enrichment.

In light of the foregoing, Legend has failed to demonstrate that the doctrine of res judicata applies as a bar to the Cardo defendants' affirmative defenses and counterclaims. Accordingly, Legend has not met its burden to strike the Cardo defendants' affirmative defenses and to dismiss their counterclaims pursuant to CPLR 3211 (b). A fortiori, Legend has failed to make a prima facie showing of its entitlement to summary judgment dismissing the Cardo defendants' affirmative defenses and counterclaims pursuant to CPLR 3212. In light of the foregoing, it is not necessary to examine the sufficiency of the Cardo defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

CONCLUSION

Legend's motion for an order pursuant to CPLR 3211 (b) dismissing the Cardo defendants affirmative defenses and counterclaims is denied.

Legend's motion for an order pursuant to CPLR 3212 (b) dismissing the Cardo defendants affirmative defenses and counterclaims is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.