GULIYEV v. BANILOV ASSOCIATES (2026)

DECISION & ORDER

In an action to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated May 13, 2024.  The order granted the separate motions of the defendant Harlan Wittenstein and the defendants Banilov & Associates, P.C., and Nick Banilov pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

The plaintiff commenced an action to recover damages for personal injuries he alleged he sustained as a result of a motor vehicle accident (hereinafter the underlying action) (see Guliyev v. Banilov & Assoc., P.C., 221 AD3d 589, 589–590).  The defendants in the underlying action moved to compel enforcement of a settlement.  The plaintiff opposed, asserting that he did not authorize his counsel to accept the settlement.  Following a framed-issue hearing, the Supreme Court granted the motion, concluding the plaintiff's legal counsel in the underlying action had the authority to settle the underlying action.

Thereafter, in August 2020, the plaintiff commenced an action against the defendant Harlan Wittenstein, who was of counsel to the plaintiff's counsel in the underlying action, and the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487 (hereinafter the 2020 action).  Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint in the 2020 action insofar as asserted against each of them.  The plaintiff opposed.  In an order dated May 17, 2021 (hereinafter the May 2021 order), the Supreme Court granted the motions and directed dismissal of the complaint in the 2020 action.  In a decision and order dated November 1, 2023 (hereinafter the November 2023 decision and order), this Court affirmed the May 2021 order (see Guliyev v. Banilov & Assoc., P.C., 221 AD3d 589).

Thereafter, in December 2023, the plaintiff commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487.  Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, contending, among other things, that the causes of action were precluded by the doctrine of res judicata.  The plaintiff opposed.  In an order dated May 13, 2024, the Supreme Court granted the motions.  The plaintiff appeals.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata (see Ciafone v. City of New York, 227 AD3d 946, 948).  The doctrine precludes a party from relitigating a claim that has been finally adjudicated on the merits (see Park Slope Auto Ctr., Inc. v Papa, 190 AD3d 754, 756;  Blake v. City of New York, 144 AD3d 1071, 1073).  “ ‘Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint’ ” (Duchemin v. Village of E. Hampton, 222 AD3d 715, 718, quoting Park Slope Auto Ctr., Inc. v. Papa, 190 AD3d at 756).

Since the allegations in the complaint in this action were virtually identical to the facts as alleged in the complaint in the 2020 action, they did not correct the defects in the complaint in the 2020 action.  Thus, the May 2021 order, directing dismissal of the complaint in the 2020 action pursuant to CPLR 3211(a), and the November 2023 decision and order were properly given preclusive effect by the Supreme Court in directing dismissal of the complaint in this action (see Ciafone v. City of New York, 227 AD3d at 948;  Park Slope Auto Ctr., Inc. v. Papa, 190 AD3d at 756).

Accordingly, the Supreme Court properly granted Wittenstein's and the Banilov defendants' separate motions pursuant to CPLR 3211(a) to dismiss the complaint in this action insofar as asserted against each of them.

In light of the foregoing, we need not reach the parties' remaining contentions.

DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur.