Clark v. Golenbock

269 A.D.2d 180, 703 N.Y.S.2d 711, 2000 N.Y. App. Div. LEXIS 1144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 29, 1998, dismissing the complaint, and bringing up for a review an order, entered on or about March 27, 1998, which, in an action for legal malpractice, granted defendant’s motion to dismiss the complaint on the ground of collateral estoppel, unanimously affirmed, without costs. Appeal from said order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The action, which arises out of defendant law firm’s failure to timely file an appeal with the Commodities Futures Trading Commission (CFTC) of a decision of the New York Mercantile Exchange (NYMEX) Adjudication Committee expelling plaintiff from NYMEX for three and a half years for violations of certain ■of its rules, was properly dismissed. A subsequent decision of the CFTC, which, after a de novo hearing, revoked plaintiff’s •registration as a floor broker largely for his violations of NYMEX’s rules, collaterally estops plaintiff from asserting that defendant’s malpractice was the cause of his expulsion from NYMEX. The subsequent CFTC decision, which is not tainted by any claim of malpractice, demonstrates beyond peradventure that had defendant taken an appeal to the CFTC in the NYMEX matter, the appeal would have been decided adversely to plaintiff. The CFTC proceeding provided plaintiff with a full and fair opportunity to litigate the charges brought against him in the NYMEX proceeding. Concur — Rosenberger, J. P., Ellerin, Wallach and Saxe, JJ.