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173 F.3d 843 (Table) Unpublished Disposition

(Cite as: 173 F.3d 843, 1999 WL 248156 (2nd Cir.(N.Y.)))


(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA2 s 0.23 for rules regarding the publication and citation of unpublished opinions.)

United States Court of Appeals, Second Circuit.

DOMINO MEDIA, INC., a dissolved
corporation, Plaintiff?Appellee,
Ann KRANIS and Richard Kranis,

Nos. 98?9039L, 98?9131.

April 26, 1999.

Appeal from the United States District Court for the Southern District of New York (Kaplan, J.).

Richard Kranis, pro se, Naples, FL., Appearing For Appellants.

Dennis T. D'Antonio, Weg & Myers P.C., New York, NY., Appearing For Appellee.

Before NEWMAN, LEVAL and SOTOMAYOR, Circuit Judges.

**1 Richard and Ann Kranis appeal from a judgment of the district court granting partial summary judgment for Domino Media and canceling certain property conveyances as fraudulent. The district court found that: (1) Domino Media, Inc.??a dissolved Colorado corporation??had the capacity to maintain a post?survival period action to satisfy the judgment in a New York state malpractice action that Domino Media had timely commenced within the two?year survival period; (2) Richard Kranis had fraudulently conveyed real property to Ann Kranis during the pendency of the malpractice action against Richard Kranis to avoid satisfying the state court judgment and (3) the Kranises were collaterally estopped from challenging the New York judgment.

The decision of the district court is affirmed for substantially the reasons stated in Judge Kaplan's Order of June 26, 1998.

Domino Media had capacity to sue under either Colorado or New York law. Under applicable Colorado law, a dissolved corporation must commence, not conclude, an action within two years of the date of the dissolution. See Colo.Rev.Stat.Ann. § 7?8?122(1), repealed by Colorado Laws 1993, H.B. 93? 1154, S 46 (effective July 1, 1994). Defendants argue that Domino is barred from maintaining this suit because it was brought more than two years after Domino was dissolved. In rejecting this argument, the district court correctly concluded that Domino Media could maintain this suit under that provision because the action, in seeking satisfaction of the state court judgment, essentially continued the state court action which Domino Media had timely filed within the two year survival period. Cf. Bankers Trust Co. v. Hall, 116 Colo. 566, 183 P.2d 986, 988?89 (Colo.1947) (en banc) (finding that a dissolved corporation was entitled to seek a writ of error to review a judgment beyond the survival period, even though application was technically tantamount to commencement of a new action). This view is also supported by the evident concern of Colorado law to allow a dissolved corporation to collect its assets and discharge its obligations. Certification to the Colorado Supreme Court is therefore unnecessary. See McCarthy v. Olin Corp., 119 F.3d 148, 153?54 (2d Cir.1997) (When we must "predict how the forum state's highest court would decide the issues before us, we will not certify questions of law where sufficient precedents exist for us to make [the] determination.").

The Kranises' alternate argument, that Domino Media lacked capacity to sue due to its non?compliance with New York Business Corporation Law § 1312(a), was waived by the Kranises' failure to raise the issue in their pleadings. See Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1580?81 (2d Cir.1994). Furthermore, even if the issue were not waived, Domino would have been given an opportunity to cure any defect prior to dismissal with prejudice, see S & K Sales Co. v. Nike, Inc., 816 F.2d 843, 853 (2d Cir.1987), and nothing in the record suggests that Domino Media could not cure a violation in this case.

**2 The district court also correctly found that the Kranises were barred from collaterally attacking the state court judgment on the ground of fraud. Federal courts must afford state court judgments the same preclusive effect as they would be given by the courts of the state in which the judgment was rendered. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under New York law, collateral estoppel precludes a party from relitigating an issue if: (1) the issue is identical to the issue decided in the prior proceeding; (2) the issue was necessarily decided in the prior proceeding; and (3) the litigant had a full and fair opportunity to litigate the issue in the prior proceeding. See Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995). Richard Kranis fully litigated precisely his fraud claim in state court, and he has failed to show that he was deprived of a full and fair opportunity to litigate this claim in state court. Richard Kranis is therefore estopped from challenging the state court action. Further, Ann and Richard Kranis jointly hold the property in question, and her interests were identical to his with respect to the property. She is therefore also collaterally estopped from challenging the state court judgment. See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345? 46 (2d Cir.1995).

We have considered appellants' other claims and find them to be without merit. The judgment of the district court is AFFIRMED.