—Order, Supreme Court, New York County (Carol Arber, J.), entered November 8, 1991, which, inter alia, denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and which dismissed the third, fourth, and fifth causes of action pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs and without disbursements.
The doctrine of collateral estoppel is inapplicable in this instance since the prior Federal action did not decide the issue 481 which is present in this case, namely, whether defendant Finkelstein was negligent or reckless in advising plaintiff as he allegedly did (see, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65).
While the Judge in the Federal action stated that he did not believe that the insured disclosed all relevant medical information to the insurance broker (Finkelstein), this was merely dictum wholly unnecessary to the Federal court’s holding. The first two causes of action allege, inter alia, that Finkelstein negligently and improperly caused plaintiff to obtain a voidable insurance policy by advising plaintiff that certain medical conditions and doctor visits were minor and not material.
Accordingly, these two counts sufficiently allege a cause of action (see, Royal Ins. Co. v Cathy Daniels, Ltd., 684 F Supp 786, 792). Finally, but for defendants’ alleged negligence plaintiff would not have been forced to defend himself in the prior Federal action. Accordingly, plaintiff may properly seek attorneys’ fees from defendants for the defense of that prior action as an item of consequential damages. Concur — Rosenberger, Kupferman and Asch, JJ.
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