| Uffer v Travelers Cos., Inc. |
| 2011 NY Slip Op 07029 [88 AD3d 690] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Larry R. Uffer et al., Appellants, v Travelers Companies,Inc., Respondents. |
—[*1] Clyde & Co US LLP, New York, N.Y. (Daren S. McNally and Cara C. Vecchione ofcounsel), for respondent.
In an action to recover damages for breach of an insurance contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Westchester County(Smith, J.), dated September 9, 2010, as granted that branch of the defendant's motion which wasto dismiss the complaint on the ground of res judicata pursuant to CPLR 3211 (a) (5).
Ordered that the order is affirmed insofar as appealed from, with costs.
In the instant action, the plaintiffs seek to recover third-party benefits under a policy ofinsurance issued by the defendant insurer. The plaintiffs contend on this appeal that the SupremeCourt erred in holding that the defendant was entitled to the dismissal of the complaint on theground of res judicata. We reject the plaintiffs' contention.
"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on themerits exists from a prior action between the same parties involving the same subject matter. Therule applies not only to claims actually litigated but also to claims that could have been raised inthe prior litigation. The rationale underlying this principle is that a party who has been given afull and fair opportunity to litigate a claim should not be allowed to do so again" (Matter of Hunter, 4 NY3d 260,269 [2005] [citations omitted]; seeOsborne v Rossrock Fund II, L.P., 82 AD3d 727, 727-728 [2011]; Goldstein v Massachusetts Mut. Life Ins.Co., 32 AD3d 821, 821 [2006]). Under New York's transactional [*2]approach to res judicata, "once a claim is brought to a finalconclusion, all other claims arising out of the same transaction or series of transactions arebarred, even if based upon different theories or if seeking a different remedy" (O'Brien v Cityof Syracuse, 54 NY2d 353, 357 [1981]; see Matter of Hunter, 4 NY3d at 269).
The plaintiffs' only argument in support of their contention that the doctrine of res judicata isinapplicable to the instant action is that their claim in an earlier action that they commencedagainst the defendant insurer was dismissed because of a pleading defect, rather than on themerits. In the earlier action, however, the Supreme Court did not dismiss the complaint becauseof a pleading defect, but instead granted the defendant's motion for summary judgmentdismissing the complaint upon its determination that the plaintiffs were not entitled to first-partybenefits under the insurance policy issued by the defendant. Since the plaintiffs could have raisedtheir claim for third-party benefits in the context of the earlier action, the claim for third-partybenefits arises out of the same transaction as that addressed in the earlier action, and the award ofsummary judgment was a determination on the merits (see Callaghan v Curtis, 82 AD3d 816, 817 [2011]; Methal v City of New York, 50 AD3d654, 656 [2008]; cf. Landau, P.C. vLaRossa, Mitchell & Ross, 11 NY3d 8, 13-14 [2008]; 175 E. 74th Corp. v HartfordAcc. & Indem. Co., 51 NY2d 585, 590 n 1 [1980]; Pitcock v Kasowitz, Benson, Torres & Friedman, LLP, 80 AD3d453, 454 [2011]), the plaintiffs' argument affords no basis for reversal. Mastro, J.P., Balkin,Chambers and Lott, JJ., concur.