ROCHESTER DRUG CO OPERATIVE INC v. MAGALIFF (2005)

Plaintiff commenced this action to recover funds held in escrow that defendant allegedly wrongfully released to his client after assuring plaintiff, an unsecured creditor of the client, that the funds would be paid to plaintiff.   Supreme Court erred in denying that part of defendant's motion to dismiss the complaint on the ground of res judicata (see CPLR 3211[a][5] ).   Prior to the commencement of this action, plaintiff's complaint in a separate action against defendant's employer, alleging identical wrongdoing arising from the same transaction, was dismissed with prejudice.   Thus, plaintiff is barred from bringing this action against defendant (see Con-Solid Contr. Co. v. Litwak Dev. Corp., 298 A.D.2d 544, 546, 748 N.Y.S.2d 788, lv. denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48;  see also Marinelli Assoc. v. Helmsley-Noyes Co., 265 A.D.2d 1, 8, 705 N.Y.S.2d 571;  303 Realty Corp. v. Albert, 154 A.D.2d 590, 591, 546 N.Y.S.2d 417).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is granted in part and the complaint is dismissed.

MEMORANDUM: