ELIAS v. ROTHSCHILD

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Supreme Court, Appellate Division, First Department, New York.

David M.A. ELIAS, Plaintiff-Appellant, v. Lord Nathaniel Charles Jacob ROTHSCHILD, Defendant-Respondent.

Decided: May 23, 2006

FRIEDMAN, J.P., SULLIVAN, WILLIAMS, SWEENY, McGUIRE, JJ. Epstein & Weil, New York (Judith H. Weil of counsel), for appellant. Morrison & Foerster LLP, New York (Michael B. Miller of counsel), for respondent.

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered April 15, 2005, dismissing the complaint and bringing up for review an order of the same court and Justice, entered April 11, 2005, granting defendant's motion to dismiss the complaint as barred by the doctrine of res judicata, unanimously affirmed, with costs.   Appeal from the April 11, 2005 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The transactions upon which this action is premised were the subject of prior claims brought by and concluded against plaintiff (see Richbell Info. Serv., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288, 765 N.Y.S.2d 575 [2003] ).   Accordingly, the action is barred by the doctrine of res judicata (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ).   We note in this connection that claims can arise out of the same transaction or series of transactions “even if there are variations in the facts alleged, or different relief is sought” (Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981] ) and even when “ ‘several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts or would call for different measures of liability or different kinds of relief’ ” (id., quoting Restatement, Judgments 2d [Tent Draft No. 5] § 61, Comment C).

Because the issues raised in this action were also actually and necessarily decided in the earlier case after plaintiff was afforded a full and fair opportunity for their litigation, dismissal was also warranted on the grounds of collateral estoppel (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985] ).