Fidelity Brokerage Services, Inc. v. Epstein

239 A.D.2d 342, 657 N.Y.S.2d 984, 1997 N.Y. App. Div. LEXIS 4603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1997
• Status: Published

Opinion

In a proceeding pursuant to CPLR 7503 to permanently stay arbitration, the appeal is from an order of the Supreme Court, Kings County (Vaccaro, J.), dated April 5, 1996, which granted the petition.

Ordered that the order is affirmed, with costs.

Prior to bringing the arbitration claim which is the subject of this proceeding, the appellants brought an unsuccessful arbitration claim based on the same securities transaction and seeking the same relief against the petitioner Fidelity Brokerage Services, Inc. The Supreme Court properly concluded that the doctrine of res judicata precluded the appellants from bringing a second arbitration based on the same transaction, despite the fact that the arbitration award was never confirmed (see, Matter of Aetna Cas. & Sur. Co. v Bonilla, 219 AD2d 708; County of Rockland v Aetna Cas. & Sur. Co., 129 AD2d 606; Hilowitz v Hilowitz, 85 AD2d 621). Contrary to the appellants’ contentions, neither the inclusion of additional theories of recovery nor the naming of the two individuals who handled the appellants’ account as additional parties to the second arbitration defeat the preclusive effect of the arbitration award (O’Brien v City of Syracuse, 54 NY2d 353, 357; Ouziel v Coyle, 165 AD2d 868; Slavin v Fischer, 160 AD2d 934; see also, Koch v Consolidated Edison Co., 62 NY2d 548; Israel v Wood Dolson Co., 1 NY2d 116). Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.