Opinion
No. 392N.
03-03-2016
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.
Viola Carol, appellant pro se.
White Fleischner & Fino, LLP, New York (Evan A. Richman of counsel), respondent.
Opinion
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 A.D.3d 735, 945 N.Y.S.2d 261 1st Dept.2012, lv. denied in part and dismissed in part 20 N.Y.3d 1021, 960 N.Y.S.2d 57, 983 N.E.2d 1241 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 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 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 N.Y.2d 185, 194, 445 N.Y.S.2d 68, 429 N.E.2d 746 1981; Marinelli Assoc. v. Helmsley–Noyes Co., 265 A.D.2d 1, 4–5, 705 N.Y.S.2d 571 1st Dept.2000 ).
TOM, J.P., SAXE, RICHTER, KAPNICK, JJ., concur.