Opinion
2002-04817
Argued April 3, 2003.
May 5, 2003.
In an action to recover an attorneys' fee pursuant to a guarantee, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), dated April 18, 2002, which granted the defendants' motion pursuant to CPLR 3211(a)(5) to dimiss the complaint on the ground that it was barred by the doctrine of res judicata.
Davis Gilbert, LLP, New York, N.Y. (Paul F. Corcoran and Cory Greenberg of counsel), for appellant.
Mark A. Billhimer, Hicksville, N.Y., for respondents.
Before: ANITA R. FLORIO, J.P., HOWARD MILLER, THOMAS A. ADAMS, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The court erred in holding that the plaintiff could not maintain this plenary action for recoupment of an attorneys' fee pursuant to paragraph 14 of the subject guarantee. The claim for a postjudgment attorneys' fee in a prior related action was not brought to a final conclusion, and the claim in this case did not arise out of the same transaction or series of transactions as the prior related action (see Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485; see also Matter of Miller v. Kozakiewicz, 300 A.D.2d 399; Winkler v. Weiss, 294 A.D.2d 428; Sclafani v. Story Book Homes, 294 A.D.2d 559). This claim could not have been litigated in the prior action (see Garguilo v. Oppenheim, 95 A.D.2d 484, affd 63 N.Y.2d 843; cf. Feeney v. Licari, 131 A.D.2d 539).
The parties' remaining contentions are without merit.
FLORIO, J.P., H. MILLER, ADAMS and MASTRO, JJ., concur.