Chorekchan v Forman

[*1] Chorekchan v Forman 2007 NY Slip Op 52362(U) [18 Misc 3d 127(A)] Decided on December 13, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-2105 Q C.

Eleonora Chorekchan, Appellant.

against

Arthur H. Forman, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), entered October 30, 2006. The order granted defendant's motion to dismiss the action.

Order affirmed without costs.

Plaintiff brought the instant small claims action to recover legal fees paid to defendant, an attorney, pursuant to a retainer agreement, plus interest and filing fees. Defendant moved to dismiss the action based upon the grounds of res judicata and arbitration and award, alleging that plaintiff had commenced a prior small claims action against him seeking the same relief, and that a judgment was entered, pursuant to an arbitrator's award, in favor of defendant dismissing the action. Plaintiff alleged that the actions were not identical because the instant action was for breach of contract and the prior action was for "lack of services." The lower court granted defendant's motion and dismissed the instant action.

CCA 1808 provides in pertinent part that a small claims judgment "shall not be deemed an adjudication of any fact at issue or found therein in any other action or court." In Omara v Polise (163 Misc 2d 989, 990 [App Term, 2d & 11th Jud Dists 1995]), this court, quoting from Siegel, New York Practice § 585 (2d ed), stated that "[t]he provision was not intended to divest the small claims judgment of its claim preclusion' effect, which is the more technical meaning of res judicata,' but rather of its collateral estoppel' or issue preclusion' use." Thus, if a plaintiff lost a small claims suit to a defendant, the loss precluded the plaintiff from suing defendant again for the same cause of action even in the regular part of the court (id.).

In our opinion, despite plaintiff's attempts to label her theories of liability in different terms, plaintiff's prior small claims action, which resulted in a judgment entered against her upon an arbitrator's award, was identical to that alleged in the instant action.
Accordingly, the instant action was properly dismissed as it was barred pursuant to CPLR 3211 (a) (5).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 13, 2007