Speken v. Moore

Order, Supreme Court, New York County (Walter Tolub, J.), entered April 23, 2003, which, in an action for legal malpractice, [199] granted defendant’s motion to dismiss the complaint on the grounds of, inter alia, res judicata, unanimously affirmed, without costs. The underlying action was for wrongful death based on medical malpractice, and was settled just before trial. Two attempts by plaintiff to vacate the settlement were denied, the second on the ground that it was precluded by the denial of the first (Speken v Columbia Presbyt. Med. Ctr., 278 AD2d 154 [2000]; Speken v Columbia Presbyt. Med. Ctr., 304 AD2d 489 [2003], lv denied 100 NY2d 511 [2003]). The instant action, which claims that the settlement was a product of plaintiffs’ attorney’s malpractice, fraud and disloyalty, must be dismissed for the same reason; indeed, this precise claim was made and necessarily rejected in plaintiffs’ first attempt to vacate the settlement (see Sei Young Choi v Dworkin, 230 AD2d 780 [1996], lv denied 89 NY2d 805 [1996]). We have considered plaintiffs’ other arguments and find them unavailing. Concur—Tom, J.P., Saxe, Ellerin, Lerner and Gonzalez, JJ.