Appellate Division of the Supreme Court of New York, 2004

Fogel v. Oelmann

Appellate Division of the Supreme Court of New York · Decided May 3, 2004

7 A.D.3d 485; 776 N.Y.S.2d 76

Cases that cite this one

9 later published cases cite this decision.

Moise v. Ocwen Loan Servicing LLC (In re Moise) (United States Bankruptcy Court, E.D. New York 2017)
Hoffer v. Bank of America, N.A. (Appellate Division of the Supreme Court of New York 2016)
Ippolito v. TJC Development, LLC (Appellate Division of the Supreme Court of New York 2011)
Serio v. Town of Islip (Appellate Division of the Supreme Court of New York 2011)
In re Alfonzo T. (Appellate Division of the Supreme Court of New York 2010)
Greaves v. Ortiz (Appellate Division of the Supreme Court of New York 2009)
Silberstein, Awad & Miklos, P.C. v. Spencer, Maston & McCarthy, LLP (Appellate Division of the Supreme Court of New York 2007)
Mancini v. Hardscrabble Commons Associates (Appellate Division of the Supreme Court of New York 2006)
210-220-230 Owners Corp. v. DeRaffele (Appellate Division of the Supreme Court of New York 2006)

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, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated November 19, 2002, which granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

Ordered that the order is affirmed, without costs or disbursements.

*486The plaintiff commenced a prior action against the defendant in February 2002, inter alia, for specific performance of an agreement in which the defendant allegedly acknowledged her indebtedness to the plaintiff and agreed to deed over to him certain property she owned in satisfaction of the debt. The action was dismissed in June 2002, on the ground that the agreement was “impossible of performance.” No appeal was taken. Several months later, the plaintiff commenced the instant action, inter alia, alleging breach of contract, fraud, and conversion.

“[0]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see O’Connell v Corcoran, 1 NY3d 179, 184-185 [2003]; Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981]; CRK Contr. of Suffolk v Brown & Assoc., 260 AD2d 530 [1999]). Although the instant action was based on different theories and sought different remedies, it was grounded on the same transaction or series of transactions as the prior action. Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of res judicata (see Smith v Russell Sage Coll., supra; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1 [2000]; Davie v Dwyer, 155 AD2d 921 [1989]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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