Appellate Division of the Supreme Court of New York, 2003

Wendy v. Spector

Appellate Division of the Supreme Court of New York · Decided May 5, 2003

305 A.D.2d 403; 758 N.Y.S.2d 526

Cases that cite this one

7 later published cases cite this decision.

Spector v. Wendy (Appellate Division of the Supreme Court of New York 2009)
Frackson v. Brown & Williamson Tobacco Corp. (Appellate Division of the Supreme Court of New York 2009)
Millennium Environmental, Inc. v. City of Long Beach (Appellate Division of the Supreme Court of New York 2008)
Hothan v. Metropolitan Suburban Bus Authority (Appellate Division of the Supreme Court of New York 2005)
State v. Westchester Joint Water Works (Appellate Division of the Supreme Court of New York 2005)
Hall v. Cucco (Appellate Division of the Supreme Court of New York 2004)
Palumbo v. Palumbo (Appellate Division of the Supreme Court of New York 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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 dismiss the complaint on the ground that it was barred by the doctrine of res judicata.

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 Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]; see also Matter of Miller v Kozakiewicz, 300 AD2d 399 [2002]; Winkler v Weiss, 294 AD2d 428 [2002]; Sclafani v Story Book Homes, 294 AD2d 559 [2002]). This claim could not have been litigated in the prior action (see Gargiulo v Oppenheim, 95 AD2d 484 [1983], affd 63 NY2d 843 [1984]; cf. Feeney v Licari, 131 AD2d 539 [1987]).

The parties’ remaining contentions are without merit. Florio, J.P., H. Miller, Adams and Mastro, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.