| Liberty Assoc. v Etkin |
| 2010 NY Slip Op 00225 [69 AD3d 681] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Liberty Associates, Appellant, v Michael S. Etkin,Respondent. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), forrespondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Winslow, J.), dated August 10, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In March 2002 the plaintiff, Liberty Associates, commenced this action to recover damagesfor legal malpractice against Michael S. Etkin, a member of Ravin, Sarasohn, Cook,Baumgarten, Fisch & Rosen (hereinafter the Ravin Firm), based on legal services performed bythe Ravin Firm for the plaintiff. In January 2003 the Ravin Firm commenced an action againstLiberty Associates in the Superior Court of New Jersey to recover fees for the legal servicesrendered. In 2004, during the pendency of the instant action, Liberty Associates and the RavinFirm settled the New Jersey fee dispute action (hereinafter the fee dispute action), which wasdismissed with prejudice. Upon learning of the settlement, Etkin moved for summary judgmentdismissing the complaint in the instant action. The Supreme Court granted the defendant'smotion. We affirm.
The plaintiff was entitled to pursue its legal malpractice claim against the defendantindividually as a member of the Ravin Firm at the time of the alleged malpractice (see Fanelliv Adler, 131 AD2d 631, 631-632 [1987] ["injured party may bring an action against all orany of the partners in their individual capacities or against the partnership as an entity"]; seealso Pedersen v Manitowoc Co., 25 NY2d 412 [1969]; Zuckerman v Antenucci, 124Misc 2d 971 [1984]). However, the plaintiff's claim is barred by the doctrine of res judicata,which "precludes a party from litigating 'a claim where a judgment on the merits exists from aprior action between the same parties involving the same subject matter' " (Matter of Josey v Goord, 9 NY3d386, 389 [2007], quoting Matter ofHunter, 4 NY3d 260, 269 [2005]). A valid final judgment bars future actions betweenthe same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co.,93 NY2d 343, 347 [1999]), which includes "all other claims arising out of the same transactionor series of transactions . . . even if based upon different theories or if seeking adifferent remedy" (Fifty CPW TenantsCorp. v Epstein, 16 AD3d 292, 293 [2005]; see QFI, Inc. v Shirley, 60 AD3d 656, 657 [2009]; Vedder v County of Nassau, 59 AD3d527, 528 [2009]).[*2]
This action to recover damages for legal malpracticeagainst Etkin, as a member of the Ravin Firm, arises out of the same series of transactions as thefee dispute action asserted by the Ravin Firm against the plaintiff herein for legal fees. Uponresolution of the fee dispute action, the parties, by their attorneys, executed a stipulation ofdismissal with prejudice and without costs. A stipulation of discontinuance with prejudicewithout reservation of right or limitation of the claims disposed of is entitled to preclusive effectunder the doctrine of res judicata (see Matter of Hofmann, 287 AD2d 119, 123 [2001]["An order of discontinuance effecting settlement on the merits is accorded the same res judicataeffect as the entry of judgment on the merits"]; see also Fifty CPW Tenants Corp. vEpstein, 16 AD3d at 294).
Here, Etkin established, prima facie, that the legal services at issue in the instant action andin the fee dispute action were the same and, thus, that Liberty Associates' settlement of the feedispute action with the Ravin Firm, of which Etkin was a member, precludes Liberty Associatesfrom maintaining the instant action against Etkin under the doctrine of res judicata (see Izko Sportswear Co., Inc. v Flaum,25 AD3d 534, 537 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint.
In light of our determination, we need not reach the defendant's remaining contentions.Rivera, J.P., Florio, Miller and Austin, JJ., concur.