| Osborne v Rossrock Fund II, L.P. |
| 2011 NY Slip Op 01631 [82 AD3d 727] |
| March 1, 2011 |
| Appellate Division, Second Department |
| George R. Osborne et al., Appellants, v Rossrock Fund II,L.P., Respondent. |
—[*1] MacVean, Lewis, Sherwin & McDermott P.C., Middletown, N.Y. (Kevin F. Preston andFerol Reed McDermott of counsel), for respondent.
In an action to recover damages for breach of contract, the plaintiffs appeal from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated August 4, 2009, which granted thedefendant's motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (4), (5) and (7).
Ordered that the appeal by the plaintiff Patrisha Osborne is dismissed as abandoned(see 22 NYCRR 670.8 [a]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the defendant is awarded one bill of costs.
"Under the doctrine of res judicata, a disposition on the merits bars litigation between thesame parties or those in privity with them of a cause of action arising out of the same transactionor series of transactions as a cause of action that either was raised or could have been raised inthe prior proceeding" (Goldstein vMassachusetts Mut. Life Ins. Co., 32 AD3d 821, 821 [2006]; see Matter of Hunter, 4 NY3d 260,269 [2005]). Here, the claims of the plaintiff George R. Osborne (hereinafter the appellant) ariseout of the same transaction as those raised in a prior foreclosure action, and could have beenraised in that prior action. Since the defendant mortgagee was awarded summary judgment on thecomplaint and dismissing, inter alia, the appellant mortgagor's counterclaim in the foreclosureaction (see Rossrock Fund II, L.P. v Osborne, 82 AD3d 737 [2011] [decided herewith]),the doctrine of res judicata bars this action (see Cypress Hills Cemetery v City of New York, 67 AD3d 853,854 [2009]). Accordingly, the Supreme Court properly granted that branch of the defendant'smotion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (5).
In light of our determination, we need not address the appellant's remaining contentions.Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.