LANE v. BIRNBAUM

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

Susan I. LANE, et al., Plaintiffs-Appellants, v. Kenneth J. BIRNBAUM, et al., Defendants-Respondents.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Robert Graubard, for Plaintiffs-Appellants. Michael Lowe, for Defendants-Respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about August 10, 1998, which, in an action for a partnership accounting and related relief, insofar as appealed from, granted defendants' motion to dismiss the complaint to the extent of dismissing such of plaintiffs' claims as arose either prior to a 1991 release in Federal court or more than six years prior to the commencement of this action, unanimously affirmed, with costs.

 The dismissal with prejudice “so ordered” by the Federal court in the prior action between the parties constituted a final determination on the merits, with res judicata effect not only as to the matters litigated therein, but also as to all relevant issues that could have been but were not litigated therein (Nemaizer v. Baker, 2d Cir., 793 F.2d 58, 60-61;  Schwartzreich v. E.P.C. Carting Co. 246 A.D.2d 439, 440-441, 668 N.Y.S.2d 370).   Such stipulation “cannot be collaterally attacked in State court” (LaVigna v. Capital Cities/ABC, 245 A.D.2d 75, 76, 665 N.Y.S.2d 410), and was not an executory accord since it was not conditional upon defendant's future performance of some obligation but was rather with prejudice (see, Condo v. Mulcahy, 88 A.D.2d 497, 498-499, 454 N.Y.S.2d 308).

MEMORANDUM DECISION.