Schloss v Jones

Schloss v Jones 2009 NY Slip Op 08207 [67 AD3d 770] November 10, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Galit Schloss, Appellant,
v
Stephen J. Jones et al., Respondents.

—[*1] Jeffrey Levitt, Amityville, N.Y., for appellant.

Jones Garneau, LLP, Scarsdale, N.Y. (Stephen J. Jones pro se and Marcy Blake of counsel), for respondents.

In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered July 16, 2008, as granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the doctrine of res judicata and denied her cross motion pursuant to CPLR 3212 (g) to limit the issues of fact to be decided at trial.

Ordered that the order is affirmed insofar as appealed from, with costs.

The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior action, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior action (see Mahler v Campagna, 60 AD3d 1009, 1011 [2009]; Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677 [2006]). In the instant action, the plaintiff sets forth the same allegations that were or could have been resolved in a prior action. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint as barred by the doctrine of res judicata (see QFI, Inc. v Shirley, 60 AD3d 656, 657 [2009]; Lefkowitz v Schulte, Roth & [*2]Zabel, 279 AD2d 457 [2001]; Pappas v Cerrone, 281 AD2d 608 [2001]).

The plaintiff's remaining contention is without merit. Rivera, J.P., Fisher, Belen and Austin, JJ., concur.