Akabas & Cohen v. Fox Rothschild LLP

89 A.D.3d 460, 931 N.Y.2d 874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2011
• Status: Published

Opinion

The claims are barred by the doctrine of res judicata (see generally Matter of Hunter, 4 NY3d 260, 269 [2005]). It is true that the prior action (Cohen v Akabas & Cohen, 71 AD3d 419 [2010]; 79 AD3d 460 [2010]) was between plaintiff and nonparty Richard Cohen, not between plaintiff and defendant. However, Cohen, who was a partner at defendant at all relevant times, was in privity with defendant (see Pitcock v Kasowitz, Benson, Torres & Friedman, LLP, 27 Misc 3d 1238[A], 2010 NY Slip Op 51093[U] [2010], affd 80 AD3d 453 [2011], lv denied 16 NY3d 711 [2011]). In the prior action, plaintiff could have argued that Cohen was required to account for the cases that he took with him to defendant law firm (see Shandell v Katz, 217 AD2d 472, 473 [1995]), but it did not do so; instead, it argued that Cohen was entitled to the cases, but to no other assets of the partnership. Concur — Mazzarelli, J.E, Saxe, Acosta and DeGrasse, JJ.