SECOND COMPLAINT CORRECTED PRIOR TECHNICAL OMISSIONS
After BHR LLC sought to recoup a real-estate brokerage commission, IHN LLC filed a motion to dismiss. And when that request was denied by the Orange County Supreme Court an appeal followed.
On its review of the record, the Appellate Division, Second Department, noted that even though a prior case had been dismissed, for BHR’s prior failure to properly state a cause of action, the second lawsuit wasn’t barred by “collateral estoppel” or “res judicate” implications.
In addition to correcting the technical problems that plagued the first pleading, the AD2 thought that the “facts alleged in the [second] complaint” warranted a “favorable inference,” and thus allowed the second case to survive dismissal -- particularly since the requisite elements to recover a commission had been sufficiently set forth.
And since the prior dismissal didn’t involve a “merits determination,” and the actual issues involved in the dispute hadn’t been decided by the court below, the AD2 didn’t think “res judicata” or “collateral estoppel” precluded re-litigation of this particular controversy.
Think they’ll finally broker a settlement?
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DECISION