| Citidress II Corp. v Hinshaw & Culbertson LLP |
| 2009 NY Slip Op 00997 [59 AD3d 210] |
| February 10, 2009 |
| Appellate Division, First Department |
| Citidress II Corp., Respondent, v Hinshaw & CulbertsonLLP, Appellant, et al., Defendant. |
—[*1] Ira Daniel Tokayer, New York, for respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered June 30, 2008,which, to the extent appealed from, denied defendant Hinshaw & Culbertson LLP's (H&C)motion to dismiss the complaint with prejudice and for the imposition of sanctions, unanimouslymodified, on the law, to grant the motion to dismiss the complaint with prejudice, and otherwiseaffirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint asagainst H&C.
Res judicata applies because plaintiff's causes of action for declaratory relief as to its variouscounsels' claims for unpaid legal fees were litigated to a final conclusion in a prior proceedingculminating in an order of the Supreme Court, New YorkCounty (Alice Schlesinger, J.), entered on or about October 25, 2007 (see O'Brien v City ofSyracuse, 54 NY2d 353, 357 [1981]; Grezinsky v Mount Hebron Cemetery, 52 AD3d 202 [2008], lvdenied 11 NY3d 709 [2008]).
Following the entry of Justice Schlesinger's order, defendants wrote to Citidress requestingthat it withdraw the instant action on the ground that the action was barred by the doctrine of resjudicata. Defendants then brought the instant motion to dismiss. Citidress cross-moved for a stay.Just before defendants were to submit their reply papers, counsel for Citidress informed the courtthat Citidress was voluntarily withdrawing the action. The court denied defendants' motion asmoot in light of the claimed voluntary discontinuance. On appeal, H&C correctly notes thatCitidress has never contested the application of the doctrine of res judicata to the facts of thiscase. Under the circumstances, Citidress's purported voluntary discontinuance of this action wasineffective because its notice of same was not served within the time period prescribed by CPLR3217 (a) (1). Therefore, it was error to deny H&C's motion as moot.
The court properly denied H&C's motion for sanctions against Citidress for commencing[*2]and prosecuting this action based on certain factual findingsmade by the special referee in the prior proceeding. Concur—Andrias, J.P., Nardelli,Catterson, Acosta and DeGrasse, JJ.