LFJ Realty Co. v. Bank of New York

In an action to recover damages for negligence, the defendants Bank of New York, individually and as collateral agent for the NYCTL 1996-1 Trust, and NYCTL 1996-1 Trust appeal from so much of an order of the Supreme Court, Kings County (Levine, J.), dated October 29, 2004, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellants’ contention, the plaintiffs claims are not barred by the doctrines of res judicata or collateral estoppel based on this Court’s decision in NYCTL 1996-1 Trust v LFJ Realty Corp. (307 AD2d 957 [2003]), since the issue of the appellants’ negligence was not before the Court in that prior action (see Gutierrez v CNS Recycling, 284 AD2d 497, 498 [2001]).

The appellants failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Therefore, *748the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the complaint. Adams, J.P., Mastro, Fisher and Covello, JJ., concur.