Schwartz v. Society of the New York Hospital , 672 N.Y.S.2d 724 ( 1998 )

—Order, Supreme Court,. New York County (Emily Goodman, J.), entered on or about February 28, 1997, which granted defendants’ motion to dismiss the complaint on grounds of res judicata and failure to state a cause of action, granted defendants’ motion to suppress and for the return of privileged documents, and denied plaintiffs cross motion to amend his complaint, unanimously affirmed, without costs.

On May 18, 1995, the IAS Court granted defendants’ motion for summary judgment dismissing plaintiffs remaining causes of action after this Court denied his motion to file a third amended complaint (199 AD2d 129), and the IAS Court further denied plaintiffs cross motion for leave to serve a proposed amended complaint alleging fraud. Plaintiff appealed from the grant of summary judgment to defendants, but did not appeal from the denial of his motion to serve an amended complaint (see, 232 AD2d 212).

Since the Supreme Court concluded that plaintiff had not stated a cause of action for fraud and denied plaintiff leave to serve an amended complaint alleging fraud, it was incumbent upon plaintiff to challenge that ruling on appeal, and as he failed to do so, the disposition of his proposed fraud claim became final (see, Feigen v Advance Capital Mgt. Co., 146 AD2d 556), barring, pursuant to the doctrine of res judicata, reassertion of a cause of action for fraud in this new action against the same defendants premised upon the same underlying transactions (see, Feigen v Advance Capital Mgt. Co., supra; EFCO Corp. v U.W. Marx, Inc., 124 F3d 394, 399-400).

In addition, the IAS Court correctly granted defendants’ motion to suppress and for the return of defendants’ quality assurance committee records because those records were privileged (Education Law § 6527 [3]; Public Health Law § 2805-m [2]; see, Daly v Genovese, 96 AD2d 1027, lv dismissed 61 NY2d 604). Concur — Sullivan, J. P., Rosenberger, Ellerin, Nardelli and Andrias, JJ.