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

Joseph P. SHELLEY, Jr., et al., appellants, v. Sheryn SILVESTRE, etc., et al., respondents.

Decided: October 27, 2009

REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ. Steven G. Legum, Mineola, N.Y., for appellants. Beck & Strauss, PLLC, Uniondale, N.Y. (Leland Stuart Beck of counsel), for respondents.

In an action to recover damages for breach of fiduciary duty and for an accounting, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Seidell, J.H.O.), entered September 16, 2008, which, upon a decision of the same court dated August 22, 2008, made after a nonjury trial, is in favor of the defendants and against them dismissing the complaint as barred by the doctrine of res judicata.

ORDERED that the judgment is affirmed, with costs.

The gravamen of the plaintiffs' complaint is that the defendants engaged in improper behavior that caused the parties' partnership to lose rental income.   The plaintiffs seek, inter alia, payment of the alleged lost income.

 “Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof.   The rule applies not only to claims litigated but also to claims that could have been raised in the prior litigation” (Matter of City of New York v. Schmitt, 50 A.D.3d 1032, 1033, 857 N.Y.S.2d 191 [citations omitted];  see Matter of Reilly v. Reid, 45 N.Y.2d 24, 30, 407 N.Y.S.2d 645, 379 N.E.2d 172).   The claims raised in the instant complaint were raised or could have been raised during a prior action between the same parties, which was disposed of on the merits.   Accordingly, the plaintiffs' complaint was properly dismissed as barred by the doctrine of res judicata (see Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 A.D.3d 403, 404-405, 791 N.Y.S.2d 159;  Slavin v. Fischer, 160 A.D.2d 934, 934-935, 554 N.Y.S.2d 659).

The plaintiffs' remaining contentions either are without merit or need not be reached in light of our determination.   Additionally, we decline the defendants' request for the imposition of a sanction.

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