DICKERSON v. Lawrence Mandell, et al., Defendants. (2014)

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 28, 2012, awarding defendants' costs and disbursements, and bringing up for review an order, same court and Justice, entered on or about March 12, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's claim that defendants committed fraud by paying a retirement benefit to her estranged husband, without her consent, while she and her husband were in the midst of divorce proceedings, is barred by the doctrine of res judicata since there is a judgment on the merits from a prior federal action between the same parties involving the same subject matter (see Dickerson v. United Way of N.Y. City, 2008 WL 1752392 [SD N.Y.2008], affd 351 F Appx 506 [2d Cir2009], cert denied ––– U.S. ––––, 131 S Ct 105 [2010]; rehearing denied ––– U.S. ––––, 131 S Ct 698 [2010] ). The gravamen of plaintiff's allegations in both actions is that the payment was improper because the retirement benefit constituted joint marital assets subject to equitable distribution. Since both actions arose out of the same transaction and seek essentially the same remedy, the motion court properly dismissed the complaint (see Matter of Hunter, 4 NY3d 260, 269 [2005] ). The fact that plaintiff's theories of recovery in this action, sounding in negligence, fraud, and breach of fiduciary duty, differ from the theory of recovery in the federal action, which was based on an alleged violation of ERISA laws, is of no moment since the claims arose out of the same transaction (id.).

We have considered plaintiff's remaining contentions and find them unavailing.