Carol v. Madison Plaza Apartments Corp.

137 A.D.3d 453, 25 N.Y.S.3d 875

Opinion

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about November 18, 2014, which, insofar appealed from as limited by the briefs, granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed as barred by the doctrine of res judicata. Plaintiff’s action arose out of the same set of circumstances as her prior 2010 action, which was dismissed (see 95 AD3d 735 [1st Dept 2012], lv denied in part and dismissed in part 20 NY3d 1021 [2013]), and “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Plaintiff’s contentions that she did not have an opportunity to be heard and that there was no final judgment in the prior action are unavailing. To the extent she is arguing that a prior dismissal (as opposed to a full trial on the merits) cannot form the basis for res judicata, she is mistaken (see e.g. Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 4-5 [1st Dept 2000]).

Concur— Tom, J.P., Saxe, Richter and Kapnick, JJ.