Akabas & Cohen v Fox Rothschild LLP, 2011 NY Slip Op 07726 [89 AD3d 460]

November 3, 2011

Appellate Division, First Department

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The Serbagi Law Firm, P.C., New York (Christopher Serbagi of counsel), for appellant.

Ciampi LLC, New York (Arthur J. Ciampi and Maria L. Ciampi of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered February 14, 2011, which, insofar as appealed from, granted defendant’s motion to dismiss the first, second, third, and fifth causes of action, and order, same court and Justice, entered March 7, 2011, which specified that the dismissal was with prejudice, unanimously affirmed, with costs.

The claims are barred by the doctrine of res judicata ( see generally Matter of Hunter , 4 NY3d 260 , 269 [2005]). It is true that the prior action ( Cohen v Akabas & Cohen , 71 AD3d 419 [2010]; 79 AD3d 460 [2010]) was between plaintiff and nonparty Richard Cohen, not between plaintiff and defendant. However, Cohen, who was a partner at defendant at all relevant times, was in privity with defendant ( see Pitcock v Kasowitz, Benson, Torres & Friedman, LLP , 27 Misc 3d 1238[A], 2010 NY Slip Op 51093[U] [2010], affd 80 AD3d 453 [2011], lv denied 16 NY3d 711 [2011]). In the prior action, plaintiff could have argued that Cohen was required to account for the cases that he took with him to defendant law firm ( see Shandell v Katz , 217 AD2d 472, 473 [1995]), but it did not do so; instead, it argued that Cohen was entitled to the cases, but to no other assets of the partnership. Concur—Mazzarelli, J.P., Saxe, Acosta and DeGrasse, JJ..