Partlow v. Kolupa

— Casey, J. Appeal from an order and judgment of the Supreme Court at Special Term (Ellison, J.), entered June 18, 1985 in Tompkins County, which granted defendant’s motion to dismiss the complaint. Under the transactional analysis concept of the doctrine of res judicata, plaintiffs claim of conversion in the instant action is barred since it could have been litigated in the prior divorce action between the parties. Special Term’s order and judgment dismissing the complaint must therefore be affirmed. Plaintiffs complaint alleges that defendant converted certain items of silver. Plaintiffs complaint in the prior divorce action also alleged that defendant converted certain items of silver. Before the divorce action came to trial, the parties entered into a stipulation which resolved a number of issues and left for trial the issues of equitable distribution as defined in Domestic Relations Law § 236 (B). Plaintiff also agreed to withdraw her conversion claim "without prejudice to the assertion by plaintiff of such claim and without prejudice to the assertion by defendant of any defense he may make [510] against such claim of plaintiff in a subsequent trial upon the issues of 'equitable distribution’ should it be determined by the Court that such claim of plaintiff is properly maintainable at such trial”. Plaintiff did not raise the conversion claim at the subsequent trial of the equitable distribution issues, and the divorce decree contains no reference to the items of silver. As we said in Hyman v Hillelson (79 AD2d 725, 726, affd 55 NY2d 624), "the judgment in the former action is conclusive in the later, not only as to any matter actually litigated therein, but also as to any that might have been litigated”. Applying the transactional analysis, prescribed in Matter of Reilly v Reid (45 NY2d 24, 29), to the facts herein leads us to conclude that plaintiff’s conversion claim is barred by the former judgment. There can be little doubt that the conversion claim arose out of the same factual grouping as the claims in the divorce action. In fact, it was originally part of the complaint for divorce. Although the cause of action was withdrawn by stipulation of the parties, the right to assert the claim again in the later trial of the equitable distribution issues was expressly preserved. Plaintiff points out that defendant argued in the divorce action that the conversion cause of action was not maintainable as part of the equitable distribution issues. Thus, according to plaintiff, defendant cannot now argue that plaintiff should have litigated her conversion claim in the divorce action. We agree with Special Term that plaintiff’s argument must be rejected in view of the express language of the stipulation withdrawing the conversion claim from the divorce action, which provided that the conversion claim could be asserted in the subsequent trial of the equitable distribution issues subject to the court’s ruling as to whether such a claim was maintainable. Plaintiff elected not to assert the claim and sought no court ruling as to whether it was maintainable.* Defendant’s argument in the prior action, although inconsistent with his argument herein, did not deprive plaintiff of the opportunity to assert her conversion claim in the divorce action. Order and judgment affirmed, with costs. Kane, Casey and Weiss, JJ., concur. Footnotes [*] Since the issues raised in the conversion claim are directly related to "the respective rights of the parties in their separate or marital property”, which must be determined by the court in a divorce action (Domestic Relations Law § 236 [B] [5] [a]), we see no reason why the conversion claim could not have been litigated in the divorce action.