McLearn v. Cowen & Co.

Appellate Division of the Supreme Court of New York

McLearn v. Cowen & Co.

64 A.D.2d 606, 406 N.Y.S.2d 538, 1978 N.Y. App. Div. LEXIS 12374

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 1978

StatusPublished

Cited by3 cases

This text of 64 A.D.2d 606 (McLearn v. Cowen & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McLearn v. Cowen & Co., 64 A.D.2d 606, 406 N.Y.S.2d 538, 1978 N.Y. App. Div. LEXIS 12374 (N.Y. Ct. App. 1978).

Pincite

Opinion

—In an action, inter alia, to recover damages for breach of a fiduciary duty, defendant Merrill Lynch, Pierce, Fenner & Smith, Inc., appeals from an order of the Supreme Court, Westchester County, entered January 10, 1978, which denied its motion to dismiss the complaint on the ground of res judicata. Order reversed, on the law, without costs or disbursements, and motion granted. The complaint should have been dismissed on the ground of res judicata. In the prior action in Federal court, plaintiff made the same allegations of breaches by appellant of its common-law fiduciary duties as she complains of in the instant action. Moreover, the motion should have been granted for failure to state a cause of action, notwithstanding the fact that appellant did not specify such ground in its papers (see Wolfe v Bellizzi, 58 Mise 2d 773). Based on the history of the instant litigation, plaintiff is deemed to have had notice of the additional ground upon which our reversal is based. Gulotta, J. P., Shapiro, Cohalan and O’Connor, JJ., concur.

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—In an action, inter alia, to recover damages for breach of a fiduciary duty, defendant Merrill Lynch, Pierce, Fenner & Smith, Inc., appeals from an order of the Supreme Court, Westchester County, entered January 10, 1978, which denied its motion to dismiss the complaint on the ground of res judicata. Order reversed, on the law, without costs or disbursements, and motion granted. The complaint should have been dismissed on the ground of res judicata. In the prior action in Federal court, plaintiff made the same allegations of breaches by appellant of its common-law fiduciary duties as she complains of in the instant action. Moreover, the motion should have been granted for failure to state a cause of action, notwithstanding the fact that appellant did not specify such ground in its papers (see Wolfe v Bellizzi, 58 Mise 2d 773). Based on the history of the instant litigation, plaintiff is deemed to have had notice of the additional ground upon which our reversal is based. Gulotta, J. P., Shapiro, Cohalan and O’Connor, JJ., concur.

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Bluebook (online)

64 A.D.2d 606, 406 N.Y.S.2d 538, 1978 N.Y. App. Div. LEXIS 12374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclearn-v-cowen-co-nyappdiv-1978.

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