Herrick v. Lyon

35 A.D.3d 663, 827 N.Y.S.2d 252

Opinion

In an action to recover legal fees, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered November 7, 2005, as denied that branch of her motion which was, in effect, to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) on the ground that the action is barred by the doctrine of res judicata.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendant’s contention, the judgment entered in this matter following her prior successful appeal was not a final adjudication of the matter precluding service of an amended complaint, as the dismissal of the complaint was with leave to replead (see Herrick v Lyon, 7 AD3d 571, 572 [2004]). Rather, the purpose of the judgment was merely to direct payment of the appeal costs and disbursements as a money judgment (see CPLR 2222). Accordingly, it is not res judicata with respect to the entire merits of the case, but only as to the issue that was actually decided (see Whitman v Whitman, 95 AD2d 882 [1983]; cf. Aard-Vark Agency, Ltd. v Prager, 8 AD3d 508 [2004]). Consequently, the Supreme Court properly denied the defendant’s motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (5). Goldstein, J.P, Skelos, Lunn and Covello, JJ., concur.