698 N.Y.S.2d 234 | N.Y. App. Div. | 1999
—Order, Supreme Court, New York County (Carol Huff, J.), entered August 10, 1998, which, in an action seeking, as relevant to this appeal, damages for fraud against an accounting firm and its principal, granted such defendants’ motion to dismiss the complaint as against them on the ground of res judicata, unanimously affirmed, without costs.
We agree with the IAS Court that this Court’s dismissal, pursuant to CPLR 3211 (a) (7) and 3016 (b), of plaintiffs’ decedent’s prior action for fraud and accounting malpractice against the moving defendants (Lampert v Mahoney, Cohen & Co., 218 AD2d 580) constitutes res judicata barring the instant action. The two actions are based on the same transactions, and the dismissal of the prior action, to the extent based on the absence of any allegation in the prior complaint that the plaintiff had “undertake [n] an independent appraisal of the risk he was assuming” in the subject transactions (supra, at 582), was not merely for a technical pleading defect, but manifestly on the merits, based on a finding that plaintiff’s failure to exercise such due diligence precluded him from prevailing on his fraud cause of action against such defendants, regardless of what other facts he might allege (see, Bluebird Partners v First Fid. Bank, 259 AD2d 273, 274, citing Feigen v