Opinion
3321.
Decided April 6, 2004.
Order, Supreme Court, New York County (Walter Tolub, J.), entered April 23, 2003, which, in an action for legal malpractice, granted defendant's motion to dismiss the complaint on the grounds of, inter alia, res judicata, unanimously affirmed, without costs.
Pro Se Stephanie Z. Speken, for Plaintiffs-Appellants.
Harris J. Zakarin, for Defendant-Respondent.
Before: Tom, J.P., Saxe, Ellerin, Lerner, Gonzalez, JJ.
The underlying action was for wrongful death based on medical malpractice, and was settled just before trial. Two attempts by plaintiff to vacate the settlement were denied, the second on the ground that it was precluded by the denial of the first ( Speken v. Columbia Presbyterian Med. Ctr., 278 A.D.2d 154; Speken v. Columbia Presbyterian Med. Ctr., 304 A.D.2d 489, lv denied 100 N.Y.2d 511). The instant action, which claims that the settlement was a product of plaintiffs' attorney's malpractice, fraud and disloyalty, must be dismissed for the same reason; indeed, this precise claim was made and necessarily rejected in plaintiffs' first attempt to vacate the settlement ( see Sei Young Choi v. Dworkin, 230 A.D.2d 780, lv denied 89 N.Y.2d 805). We have considered plaintiffs' other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.