Ciancimino v. Town of East Hampton

—In an action, inter alia, to recover damages for false arrest, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Seidell, J.), dated August 17, 1998, which granted the defendants’ motion to dismiss the complaint on the ground of res judicata and dismissed the complaint. Ordered that the order and judgment is affirmed, with costs; and it is further, [332] Ordered that the appellants, their counsel, and counsel for the respondents are directed to show cause why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against the appellants and/or their counsel pursuant to 22 NYCRR 670.2 (h) as this Court may deem appropriate, by filing an original and four copies of an affirmation or affidavit on that issue in the office of the clerk of this Court and serving one copy of the same on all parties to the action on or before December 15, 1999. “ ‘Res judicata bars future litigation between the same parties, or those in privity with the parties, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in a prior proceeding’ ” (Evergreen Bank v Dashnaw, 246 AD2d 814, 815; see, Matter of Joy Co. v Hudacs, 199 AD2d 858, 859; see also, Charles v Chase Manhattan Bank, 254 AD2d 321). The record shows that the prior action, which involved the same parties as the present action, was dismissed in its entirety and that the dismissal was on the merits although the judgment did not so expressly state (see, Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737, 739; see also, Martins v Wood, 251 AD2d 465). Thus, the plaintiffs may not attempt to resurrect in the present action that which was dismissed in the prior action. Moreover, by virtue of their privity with the parties in the prior action, the addition of a new plaintiff and a new defendant in the present action does not bar the application of res judicata (see, Matter of Jason H. v John C., 226 AD2d 638; Kovitz v Tesmetges, 186 AD2d 32). In view of our disposition herein, we need not reach the plaintiffs’ remaining contentions. In light of the pursuit of this appeal by the appellants and their counsel, they and counsel for the respondents are directed to show cause why sanctions and/or costs should or should not be imposed against the appellants and/or their counsel pursuant to 22 NYCRR 670.2 (h). Thompson, J. P., Joy, McGinity and Feuerstein, JJ., concur.