Opinion
October 26, 1998
Appeal from the Supreme Court, Kings County (Garson, J.).
Ordered that the order is reversed, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated.
Contrary to the defendants' contentions, they may not avoid the plaintiff's claims of legal malpractice pursuant to the doctrine of res judicata. " Res judicata requires that when a cause of action has been adjudicated on the merits, the parties to the action are bound by the judgment and may not relitigate the same cause of action between themselves" (10 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.24; see, Sherman v. Ansell, 207 A.D.2d 537). Since the defendant lawyers were not parties to the underlying Federal civil rights litigation, they may not invoke the doctrine of res judicata as a defense to malpractice ( see, 2 Mallen and Smith, Legal Malpractice § 20.12 [4th ed]; cf., Cornwall Warehousing v. Town of New Windsor, 238 A.D.2d 370).
In addition, the defendants have not demonstrated that the plaintiff's legal malpractice claims are barred by collateral estoppel ( see, Cannistra v. McCullough, Goldberger Staudt, 248 A.D.2d 577). The issues to be litigated in the instant malpractice action are not identical to those determined in the prior Federal civil rights action ( see, Weiss v. Manfredi, 83 N.Y.2d 974; Petersen v. Lysaght, Lysaght Kramer, 250 A.D.2d 581; Talcove v. Buckeye Pipe Line Co., 247 A.D.2d 464; Katash v. Richard Kranis, P. C., 229 A.D.2d 305; Greene v. Payne, Wood Littlejohn, 213 A.D.2d 698; Rosenkrantz v. Erdheim, 177 A.D.2d 389; Schulkin v. Stern, 145 A.D.2d 326).
The defendants' remaining contentions are without merit.
Pizzuto, J. P., Joy, Florio and Luciano, JJ., concur.