Carol v. Madison Plaza Apts. Corp. , 25 N.Y.S.3d 875 ( 2016 )

Carol v Madison Plaza Apts. Corp. (2016 NY Slip Op 01563)

Carol v Madison Plaza Apts. Corp.

2016 NY Slip Op 01563

Decided on March 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2016
Tom, J.P., Saxe, Richter, Kapnick, JJ.

392N 156730/13

[*1]Viola Carol, Plaintiff-Appellant,

v

Madison Plaza Apartments Corp., Defendant-Respondent.

Viola Carol, appellant pro se.

White Fleischner & Fino, LLP, New York (Evan A. Richman of counsel), respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about November 18, 2014, which, insofar appealed from as limited by the briefs, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed as barred by the doctrine of res judicata. Plaintiff's action arose out of the same set of circumstances as her prior 2010 action, which was dismissed (see 95 AD3d 735 [1st Dept 2012], lv denied in part and dismissed in part 20 NY3d 1021 [2013]), and "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Plaintiff's contentions that she did not have an opportunity to be heard and that there was no final judgment in the prior action are unavailing. To the extent she is arguing that a prior dismissal (as opposed to a full trial on the merits) cannot form the basis for res judicata, she is mistaken (see e.g. Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 4-5 [1st Dept 2000]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2016

CLERK