Miller Manufacturing Co. v. Zeiler

Order, Supreme Court, New York County, entered May 11, 1977, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 5), unanimously reversed, on the law, and the motion granted, with $60 costs and disbursements payable to appellant by respondent. It is undisputed that in this action plaintiff realleges claims similar to those previously brought against defendant by plaintiff’s assignor Main Street Fashions, Inc. Plaintiff’s complaint is barred by the rule of "former adjudication” which embraces the component doctrines of res judicata, collateral estoppel and the law of the case (see Hinchey v Sellers, 7 NY2d 287; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306; 5 Weinstein-Korn-Miller, NY Civ Prac, pars 5011.08, 5011.09). The mere fact that the prior determination dismissing the complaint of plaintiff’s assignor, Main Street Fashions, Inc. (Main St. Fashions v Zeiler, Supreme Ct, New York County, July 24, 1975, Sanders, J., affd 52 AD2d 778, mot for lv to app den 39 NY2d 711), was "without prejudice to plaintiff’s proceeding as he may be advised”, does not alter the adjudicative effect of that determination (see Newton v Wade, 239 App Div 742, affd 264 NY 632; Matter of McFerran v Board of Educ., 21 AD2d 944, affd 15 NY2d 630; Restatement, Judgments, ch 3, § 49). Contrary to Special Term’s conclusion, the record clearly demonstrates that the issues now sought to be litigated in this action were embraced and passed upon in the prior action brought by Main St. Fashions v Zeiler. Concur—Murphy, P. J., Lupiano, Evans and Capozzoli, JJ.