LEFKOWITZ v. ETRA ETRA (2004)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered April 22, 2002, which granted defendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint, unanimously affirmed, with costs.

 The instant claim for contribution is based upon allegations of breach of duty that were previously raised by plaintiff, and rejected on the merits, in a legal malpractice action litigated by the parties in Supreme Court, Westchester County.   Plaintiff is thus collaterally estopped from relitigating her essential breach of duty claims (see Ryan v. New York Tel., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ).   Moreover, inasmuch as this action and the prior action are premised on the identical underlying transactions, the unappealed dismissal on the merits of the prior action is entitled to res judicata effect with respect to the instant action (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981];  Barrett v. Kasco Constr. Co., Inc., 84 A.D.2d 555, 443 N.Y.S.2d 417 [1981], affd. 56 N.Y.2d 830, 452 N.Y.S.2d 566, 438 N.E.2d 99 [1982] ).