Opinion
989
May 7, 2002.
Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about October 29, 2001, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Ralph C. Dorsey, for plaintiff-appellant, pro se.
Christopher P. Cartier, for defendant-respondent.
Before: Williams, P.J., Nardelli, Saxe, Rosenberger, Marlow, JJ.
In an action previously concluded in defendant's favor, plaintiff sought to impose liability upon defendant for failing to appear and advocate on his behalf at a license restoration hearing. Inasmuch as plaintiff, in the present action, again alleges that defendant wrongfully failed to appear and advocate for him at the restoration hearing, his action is barred by the doctrine of res judicata. The application of the doctrine is not avoided by the circumstance that plaintiff now complains of fraud, whereas his prior complaint was for breach of contract, since both causes of action arise out of the same transaction and plaintiff had a full and fair opportunity to litigate his fraud claim in the prior action (see,Marinelli Assocs. v. Helmsley-Noyes Co., 265 A.D.2d 1, 5). Contrary to plaintiff's argument, there is no basis to estop defendant from relying on the doctrine of res judicata. There is nothing in the record indicating that defendant did anything to mislead plaintiff or otherwise wrongfully prevent him from asserting his fraud claim in the prior action (see,Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184;Powers Mercantile Corp. v. Feinberg, 109 A.D.2d 117, 122, affd 67 N.Y.2d 981).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.