Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc.

Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc. 2009 NY Slip Op 09722 [68 AD3d 678] December 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Sannon-Stamm Associates, Inc., Appellant,
v
Keefe, Bruyette & Woods, Inc., Respondent.

—[*1] A. Bernard Frechtman, New York (Diane B. Kaplan of counsel), for appellant.

Eiseman Levine Lehrhaupt & Kakoyiannis, P.C., New York (Eric Aschkenasy of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about December 4, 2008, which granted defendant's motion to dismiss the complaint, deemed to be an appeal from judgment, same court and Justice, entered December 9, 2008 (CPLR 5501 [c]), dismissing the complaint, and so considered, the judgment unanimously reversed, on the law, with costs, and the complaint reinstated.

The doctrine of res judicata may be invoked in instances of claim splitting to prohibit a plaintiff from bringing an action for only part of his claim; the judgment obtained in that action would preclude him from bringing a second action for the residue of the claim (see Stoner v Culligan, Inc., 32 AD2d 170, 171-172 [1969]).

Here, however, since the issues relating to the nonpayment of the subsequent installments of the placement fee had not matured when the Civil Court action was brought for nonpayment of the first installment of the referral fee, and consequently had never been litigated, this action is not barred by res judicata (see Gelb v Hatton, 128 AD2d 501, 501-502 [1987]). Concur—Andrias, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ. [Prior Case History: 2008 NY Slip Op 33263(U).]