Wendy v. Spector

In an action to recover an attorneys’ fee pursuant to a guarantee, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), dated April 18, 2002, which granted the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it was barred by the doctrine of res judicata. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The court erred in holding that the plaintiff could not maintain this plenary action for recoupment of an attorneys’ fee pursuant to paragraph 14 of the subject guarantee. The claim for a postjudgment attorneys’ fee in a prior related action was not brought to a final conclusion, and the claim in this case did not arise out of the same transaction or series of transactions as the prior related action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]; see also Matter of Miller v Kozakiewicz, 300 AD2d 399 [2002]; Winkler v Weiss, 294 AD2d 428 [2002]; Sclafani v Story Book Homes, 294 AD2d 559 [2002]). This claim could not have been litigated in the prior action (see Gargiulo v Oppenheim, 95 AD2d 484 [1983], affd 63 NY2d 843 [1984]; cf. Feeney v Licari, 131 AD2d 539 [1987]). The parties’ remaining contentions are without merit. Florio, J.P., H. Miller, Adams and Mastro, JJ., concur.