Opinion
November 22, 2000.
Appeal from an order of the Supreme Court (Dawson, J.), dated July 26, 1999 in Essex County, which denied defendants' motion to dismiss the complaint on the ground of res judicata and/or collateral estoppel.
Roche, Corrigan, McCoy Bush (Scott W. Bush of counsel), Albany, for appellants.
Weiner Gall (Richard J. Weiner of counsel), Nanuet, for respondents.
Before: Crew III, J.P., Spain, Carpinello, Graffeo and Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendants seek to dismiss plaintiffs' complaint seeking damages for legal malpractice, negligence and breach of contract on the grounds of collateral estoppel and res judicata. Briefly, they claim that this action is barred by a prior decision of Supreme Court finding that defendant Stephen Johnston is entitled to a Judiciary Law § 475 lien, Johnston having been discharged by plaintiffs in the underlying personal injury action (see, e.g., Summit Solomon Feldesman v. Matalon, 216 A.D.2d 91, 92, lv denied 86 N.Y.2d 711). Fundamentally, because no order or final judgment was ever entered in that action, the doctrines of collateral estoppel and res judicata are inapplicable to the instant matter (see, e.g., Gallo v. Teplitz Tri-State Recycling, 254 A.D.2d 253, 254; Begelman v. Begelman, 170 A.D.2d 562, 563; Berkshire Nursing Ctr. v. Len Realty Co., 168 A.D.2d 475, 476; Ott v. Barash, 109 A.D.2d 254, 262-263; Peterson v. Forkey, 50 A.D.2d 774, 774-775; see also, Rudd v. Cornell, 171 N.Y. 114, 128-129). Indeed, "`[a] decision * * * upon which no formal judgment [or order] has been entered has no conclusive character and is ineffective as a bar to subsequent proceedings'" (Ruben v. American Foreign Ins. Co., 185 A.D.2d 63, 65, quoting 9 Carmody-Wait 2d, N Y Prac § 63:455, at 191; see, 73 N Y Jur 2d, Judgments, § 354, at 436-437). Accordingly, the order appealed from should be affirmed.
ORDERED that the order is affirmed, with costs.