| Matter of Chiantella v Vishnick |
| 2011 NY Slip Op 03843 [84 AD3d 797] |
| May 3, 2011 |
| Appellate Division, Second Department |
| In the Matter of Joachim Chiantella, Appellant, v BernardVishnick, Respondent. |
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In a proceeding pursuant to CPLR article 77, inter alia, for an accounting, the petitionerappeals (1), as limited by his brief, from so much of an order of the Supreme Court, SuffolkCounty (Jones, Jr., J.), dated July 30, 2009, as, in effect, granted that branch of the respondent'smotion which was pursuant to CPLR 3211 (a) (2) to dismiss the petition and, in effect, denied, asacademic, his cross motion to compel the deposition of a nonparty and the production of certaindocuments, and (2) from a judgment of the same court entered June 16, 2010, which, upon theorder, is in favor of the respondent and against him, dismissing the proceeding.
Ordered that the appeal from so much of the order as, in effect, granted that branch of therespondent's motion which was pursuant to CPLR 3211 (a) (2) to dismiss the petition isdismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed, that branch of the respondent's motion which waspursuant to CPLR 3211 (a) (2) to dismiss the petition is denied, that branch of the respondent'smotion which was pursuant to CPLR 3211 (a) (5) to dismiss the petition is granted, and the orderdated July 30, 2009, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from so much of the order as, in effect, granted that branch of the respondent'smotion which was pursuant to CPLR 3211 (a) (2) to dismiss the petition must be dismissedbecause the right of direct appeal therefrom terminated with the entry of judgment in theproceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on theappeal from those portions of the order are brought up for review and have been considered onthe appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court should not have granted that branchof the respondent's motion which was pursuant to CPLR 3211 (a) (2) to dismiss the petition forlack of subject matter jurisdiction. CPLR 7701 authorizes the institution of a special proceedingin the Supreme Court for the determination of matters relating to all types of express trusts,including inter vivos and testamentary trusts (see Alexander, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR 7701). Thus, contrary to the Supreme Court'sdetermination, dismissal of the petition was not mandated upon the ground that the Surrogate'sCourt has exclusive jurisdiction over this CPLR article 77 proceeding (see Gaentner v Benkovich, 18 AD3d424, 427 [2005]).
In light of its conclusion that dismissal was warranted because the Surrogate's Court hadexclusive jurisdiction over this proceeding, the Supreme Court, in effect, denied, as academic,that branch of the respondent's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thepetition upon the ground that it is barred by the doctrine of res judicata. Since the respondenturges us to consider its contention that the matter is barred by the doctrine of res judicata as analternative ground for affirmance and the record is sufficient to allow this Court to determine thatbranch of the respondent's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thepetition, and it has been briefed on appeal, we address the respondent's alternative contention andaffirm the judgment on this alternative ground (see Parochial Bus Sys. v Board of Educ. ofCity of N.Y., 60 NY2d 539 [1983]; Jun Suk Seo v Walsh, 82 AD3d 710 [2011]).
Pursuant to the doctrine of res judicata, a valid final judgment, or a stipulation of settlementwithdrawing a cause of action "with prejudice" (Liberty Assoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Matter of State of New York v SeaportManor A.C.F., 19 AD3d 609, 610 [2005]; React Serv. v Rindos, 243 AD2d 550,551 [1997]), bars future actions between the same parties on the same cause of action (seeParker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). As a general rule, "once aclaim is brought to a final conclusion, all other claims arising out of the same transaction orseries of transactions are barred, even if based upon different theories or if seeking a differentremedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Applying theseprinciples, the present proceeding, commenced after the conclusion of two prior proceedings inthe Surrogate's Court, Queens County, involving the same parties and the same issues, is barredby the doctrine of res judicata. Accordingly, the Supreme Court should have granted that branchof the respondent's motion which was pursuant to CPLR 3211 (a) (5), on the ground that theproceeding is barred by the doctrine of res judicata.
The petitioner's remaining contentions either are without merit or have been renderedacademic in light of our determination. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.