NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 29, 2009
SANNON-STAMM ASSOCIATES, INC., PLAINTIFF-APPELLANT,
KEEFE, BRUYETTE & WOODS, INC., DEFENDANT-RESPONDENT.
Appeal from order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about December 4, 2008, which granted defendant's motion to dismiss the complaint, deemed to be an appeal from judgment, same court and Justice, entered December 9, 2008 (CPLR 5501[c]), dismissing the complaint, and so considered, the judgment unanimously reversed, on the law, with costs, and the complaint reinstated.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Friedman, Acosta, DeGrasse, RomÁn, JJ.
The doctrine of res judicata may be invoked in instances of claim splitting to prohibit a plaintiff from bringing an action for only part of his claim; the judgment obtained in that action would preclude him from bringing a second action for the residue of the claim (see Stoner v Culligan, Inc., 32 AD2d 170, 171-72 ).
Here, however, since the issues relating to the nonpayment of the subsequent installments of the placement fee had not matured when the Civil Court action was brought for nonpayment of the first installment of the referral fee, and consequently had never been litigated, this action is not barred by res judicata (see Gelb v Hatton, 128 AD2d 501, 501-02 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
© 1992-2009 VersusLaw Inc.