Opinion
July 3, 1978
In an action, inter alia, to recover damages for breach of a fiduciary duty, defendant Merrill Lynch, Pierce, Fenner Smith, Inc., appeals from an order of the Supreme Court, Westchester County, entered January 10, 1978, which denied its motion to dismiss the complaint on the ground of res judicata. Order reversed, on the law, without costs or disbursements, and motion granted. The complaint should have been dismissed on the ground of res judicata. In the prior action in Federal court, plaintiff made the same allegations of breaches by appellant of its common-law fiduciary duties as she complains of in the instant action. Moreover, the motion should have been granted for failure to state a cause of action, notwithstanding the fact that appellant did not specify such ground in its papers (see Wolfe v Bellizzi, 58 Misc.2d 773). Based on the history of the instant litigation, plaintiff is deemed to have had notice of the additional ground upon which our reversal is based. Gulotta, J.P., Shapiro, Cohalan and O'Connor, JJ., concur.