| Silberstein, Awad & Miklos, P.C. v Spencer, Maston & McCarthy,LLP |
| 2007 NY Slip Op 06661 [43 AD3d 902] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Silberstein, Awad & Miklos, P.C.,Appellant-Respondent, v Spencer, Maston & McCarthy, LLP,Respondent-Appellant. |
—[*1] Spencer, Maston & McCarthy, LLP, Albany, N.Y. (Gilbert G. Spencer, Jr., of counsel; BruceMaston on the brief), respondent-appellant pro se.
In an action to enforce a charging lien, the plaintiff appeals from so much of an order of theSupreme Court, Nassau County (Mahon, J.), dated November 30, 2005, as granted that branch ofthe defendant's motion which was to dismiss the complaint on the ground of res judicata anddenied its motion to enforce the charging lien, and the defendant cross-appeals, as limited by itsbrief, from so much of the same order as denied that branch of its motion which was for theimposition of sanctions and for an attorney's fee.
Ordered that the order is reversed insofar as appealed from, on the law, that branch of thedefendant's motion which was to dismiss the complaint on the ground of res judicata is denied,and the matter is remitted to the Supreme Court, Nassau County, for a hearing and a newdetermination on the plaintiff's motion to enforce its charging lien; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Res judicata precludes all claims which could have or should have been litigated in priorproceedings, even if the instant claim is based upon different theories or seeks a different [*2]remedy (see O'Brien v City of Syracuse, 54 NY2d 353, 357[1981]; Fogel v Oelmann, 7 AD3d485 [2004]; CRK Contr. of Suffolk v Brown & Assoc., 260 AD2d 530 [1999]). Resjudicata will not, however, bar a second action where different elements of proof are required tosupport the claims (see Doe v NorthShore Univ. Hosp., 28 AD3d 603 [2006]; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752 [2005];Matter of Melillo v County of Nassau, 307 AD2d 356 [2003]; Energycresent, Inc. vCreative Modules Enters., 183 AD2d 804 [1992]; Abdella v Ne Jame, 120 AD2d 793[1986]).
The issues involved in the plaintiff's first and second actions had different factual predicates.As such, they were not part of the same "transaction or series of transactions" and the secondaction was not barred by res judicata (see Vigliotti v North Shore Univ. Hosp., 24 AD3d 752 [2005],supra).
Contrary to the defendant's contention, the issue of the plaintiff's entitlement to enforcementof its charging lien (see Judiciary Law § 475) or to recover on the basis of quantummeruit has never been adjudicated on the merits and was not the subject of the prior action.
The defendant's remaining contentions are without merit. Prudenti, P.J., Mastro, Angiolilloand Dickerson, JJ., concur.