Plaintiff is sued in Civil Court for attorney fees.  She counterclaims for legal malpractice.  She then goes on to sue in Supreme Court for legal malpractice where her complaint is dismissed.  What happens to the Civil Court case?

Law Offs. of D’Amico & Assoc., PLLC v D’Elia  2014 NY Slip Op 51242(U)  Decided on July 28, 2014  Appellate Term, Second Department tells us that the multiple suit concept merely allows extra opportunities for the case to be dismissed.

"Prior to the return date of the firm’s motion to dismiss Ms. D’Elia’s counterclaims in the District Court action, that court was advised of the Supreme Court’s decision. By order dated October 20, 2009, the District Court dismissed her counterclaims, on res judicata grounds, pursuant to CPLR 3211 (a) (5), based on a finding that the counterclaims were identical to the claims for legal malpractice she had asserted against the firm in the Supreme Court action. By decision and order dated April 26, 2011 (32 Misc 3d 28), this court reversed the District Court’s order and remitted the matter to the District Court for a new determination of the firm’s motion to dismiss the counterclaims pursuant to CPLR 3211 (a) (1) and (7), without prejudice to the firm’s seeking dismissal of the counterclaims on the ground of res judicata, pursuant to CPLR 3211 (a) (5), upon proper notice to Ms. D’Elia.

In May 2011, the firm moved, in the District Court, to dismiss Ms. D’Elia’s counterclaims on res judicata grounds, pursuant to CPLR 3211 (a) (5), and also sought a determination on its prior motion to dismiss the counterclaims pursuant to CPLR 3211 (a) (1) and (7). The firm noted that, by order dated March 3, 2010 (2010 NY Slip Op 30545[U]), the Supreme Court (Edward W. McCarty, III, J.), upon granting the branch of Ms. D’Elia’s motion seeking, in effect, to vacate her default in opposing the firm’s prior motion to dismiss her complaint, dismissed Ms. D’Elia’s complaint insofar as asserted against the firm, based upon documentary evidence. Although Ms. D’Elia had filed a notice of appeal from that order, her appeal was ultimately dismissed by the Appellate Division, Second Department, in April 2011, due to her failure to perfect. Ms. D’Elia opposed the firm’s motion.

By order dated January 5, 2012, the District Court, upon reviewing the two Supreme Court orders, denied the firm’s motion to dismiss Ms. D’Elia’s counterclaims on res judicata grounds, pursuant to CPLR 3211 (a) (5). The District Court further denied the firm’s original motion to dismiss pursuant to CPLR 3211 (a) (1) and (7). Thereafter, the firm moved for, among other things, leave to renew and reargue its prior motions. The motion was unopposed. By order dated March 16, 2012, the District Court granted renewal and reargument, and adhered to its original determination.

The doctrine of res judicata is designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 772 [5th ed]). Res judicata "generally dictates that a valid final determination on the merits bars a future action between the same parties on the same cause of action" (Troy v Goord, 300 AD2d 1086, 1087 [2002]) and is invoked when a party, or those in privity with the party, seek to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction or series of transactions which were raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Typically, "once 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]). "The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again" (Matter of Hunter, 4 NY3d at 269).

In its January 5, 2012 order, the District Court stated that Ms. D’Elia’s complaint in the Supreme Court action "included claims of legal malpractice which are essentially identical to Ms. D’Elia’s counterclaims in this action" (emphasis added). The District Court, however, denied the firm’s motion to dismiss Ms. D’Elia’s counterclaims pursuant to CPLR 3211 (a) (5), notwithstanding the fact that the Supreme Court, in both its September 15, 2009 order and its [*3]March 3, 2010 order, stated that dismissal of the complaint insofar as asserted against the firm was warranted pursuant to CPLR 3211 (a) (1), based upon the documentary evidence submitted by the firm, which conclusively established the firm’s defenses to plaintiff’s claims.

In view of the foregoing, the District Court erred in not giving res judicata effect to the Supreme Court’s dismissal of Ms. D’Elia’s complaint insofar as asserted against the firm, and should have granted plaintiff’s motion to dismiss Ms. D’Elia’s counterclaims on that ground.

Accordingly, the District Court’s March 16, 2012 order, insofar as appealed from, is modified by providing that, upon renewal and reargument, plaintiff’s motion to dismiss defendant’s counterclaims on res judicata grounds, pursuant to CPLR 3211 (a) (5), is granted, and plaintiff’s motion to dismiss defendant’s counterclaims pursuant to CPLR 3211 (a) (1) and (7) is denied as academic."