Opinion
December 6, 1977
Order, Supreme Court, New York County, entered October 12, 1976, denying defendants-appellants' motion to dismiss plaintiff-respondent's complaint, unanimously reversed, on the law, and the motion granted, without costs and without disbursements. A dispute between plaintiff, a 25% stockholder of a set of corporations which owned a chain of stores with slightly differing names, and the individual defendants, owners of the other 75% of shares, ripened into a suit for accounting and related relief, the "first action." On July 31, 1975, the parties entered into a written agreement for division of the properties, which also discontinued the first action with prejudice. However, on March 10 following, plaintiff brought a second action, stating causes identical with those in the first action; it was dismissed on motion by Special Term's holding that the causes pleaded had effectively ceased to exist by reason of the July 1975 stipulation. Undaunted, plaintiff commenced a third action, identical with its predecessors except for addition of a cause for rescission of the agreement of settlement. Special Term denied a motion to dismiss, holding that "the instant complaint states valid and proper causes of action not barred by the earlier dismissal." However, the transactions claimed to provide a basis for rescission all took place and were known to plaintiff prior to the first action's inception. "A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first" (Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 N.Y. 304, 306-307). This disposition is, however, without prejudice to a plenary suit, if so advised, by plaintiff founded upon alleged breach by defendants of the July 1975 agreement of settlement of the first action.
Concur — Kupferman, J.P., Silverman, Lane and Markewich, JJ.