Martins v. Wood

—In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated April 3, 1997, which granted the motion of the defendant David Wood to dismiss the action pursuant to CPLR 3211 (a) (5) on the ground of res judicata. Ordered that the order is affirmed, with costs. In 1992, David Wood, a defendant in the instant action, commenced an action in the Supreme Court, Nassau County, against the plaintiffs in the instant action. That prior action was based upon the same transaction and alleged the same facts as the instant action. A judgment in the prior action was entered upon the default of the plaintiffs herein (see, CPLR 3215 [a]). Since a default judgment is a judgment on the merits (see, Feeney v Licari, 131 AD2d 539), the instant action must be dismissed upon the ground of res judicata (see, CPLR 3211 [a] [5]). We additionally note that the claims raised in the instant action are identical to the defenses which were raised in the prior action by the plaintiffs herein in an attempt to establish entitlement to vacatur of the default judgment in the prior action, and that these defenses were previously found to be without merit by the Supreme Court in an order which was affirmed by this. Court (see, Wood v Martins, 232 AD2d 407). Bracken, J. P., Copertino, Santucci and McGinity, JJ., concur.