Liberty Associates, appellant, v. Michael S. Etkin, respondent. (2010)

Argued-September 15, 2009

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated August 10, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff was entitled to pursue its legal malpractice claim against the defendant individually as a member of the Ravin Firm at the time of the alleged malpractice (see Fanelli v. Adler, 131 A.D.2d 631, 631-632 [“injured party may bring an action against all or any of the partners in their individual capacities or against the partnership as an entity”];  see also Pedersen v. Manitowoc Co., 25 N.Y.2d 412;  Zuckerman v. Antenucci, 124 Misc.2d 971).   However, the plaintiff's claim is barred by the doctrine of res judicata, which “precludes a party from litigating ‘a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter’ ” (Matter of Josey v. Goord, 9 NY3d 386, 389, quoting Matter of Hunter, 4 NY3d 260, 269).   A valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347), which includes “all other claims arising out of the same transaction or series of transactions ․ even if based upon different theories or if seeking a different remedy” (Fifty CPW Tenants Corp. v. Epstein, 16 AD3d 292, 293;  see QFI, Inc. v. Shirley, 60 AD3d 656, 657;  Vedder v. County of Nassau, 59 AD3d 527, 528).

This action to recover damages for legal malpractice against Etkin, as a member of the Ravin Firm, arises out of the same series of transactions as the fee dispute action asserted by the Ravin Firm against the plaintiff herein for legal fees.   Upon resolution of the fee dispute action, the parties, by their attorneys, executed a stipulation of dismissal with prejudice and without costs.   A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata (see Matter of Hofmann, 287 A.D.2d 119, 123 [“An order of discontinuance effecting settlement on the merits is accorded the same res judicata effect as the entry of judgment on the merits”];  see also Fifty CPW Tenants Corp. v Epstein, 16 AD3d at 294).

Here, Etkin established, prima facie, that the legal services at issue in the instant action and in the fee dispute action were the same and, thus, that Liberty Associates' settlement of the fee dispute action with the Ravin Firm, of which Etkin was a member, precludes Liberty Associates from maintaining the instant action against Etkin under the doctrine of res judicata (see Izko Sportswear Co, Inc. v. Flaum, 25 AD3d 534, 537).   In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendant's remaining contentions.

RIVERA, J.P., FLORIO, MILLER and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court