PROSPECT OWNERS CORP v. TUDOR REALTY SERVICES CORP (1999)

Judgment, Supreme Court, New York County (Paula Omansky, J.), entered April 2, 1998, dismissing plaintiff's complaint, and bringing up for review an order, same court and Justice, entered March 31, 1998, which, inter alia, granted defendants' motion pursuant to CPLR 3211 to dismiss the complaint as barred by the doctrine of res judicata, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered March 31, 1998, unanimously dismissed, without costs, as subsumed within the appeal from the aforesaid judgment.

 The IAS court correctly concluded that the claims plaintiff would assert in this action are barred by the doctrine of res judicata, since a prior action based upon the same underlying transactions was concluded against plaintiff and in defendant Tudor Realty Service's favor (see, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358, 445 N.Y.S.2d 687, 429 N.E.2d 1158;  Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192, 445 N.Y.S.2d 68, 429 N.E.2d 746;  Castellano v. City of New York, 251 A.D.2d 194, 674 N.Y.S.2d 364, appeal dismissed 92 N.Y.2d 919, 680 N.Y.S.2d 458, 703 N.E.2d 270;  Corto v. Lefrak, 203 A.D.2d 94, 95, 610 N.Y.S.2d 214, lv. dismissed 86 N.Y.2d 774, 631 N.Y.S.2d 600, 655 N.E.2d 697).   Although the individual defendants herein, Shaughnessy and Colella, were not named in the original action, it is fundamental that a final determination in a prior action is subsequently binding not only as to the parties to that lawsuit but also those in privity with them (see, Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105;  Castellano v. City of New York, supra ), and Shaughnessy and Colella are clearly in privity with defendant Tudor Realty Services, which they own and operate.   In any event, “collateral estoppel is available to protect those defendants who were not parties to the earlier proceedings from having to litigate those issues previously raised and rejected, where, as here, the plaintiff fully participated in the prior proceedings” (Corto v. Lefrak, 203 A.D.2d, supra, at 95, 610 N.Y.S.2d 214).

MEMORANDUM DECISION.