| Osborne v Rossrock Fund II, L.P. |
| 2011 NY Slip Op 01631 [82 AD3d 727] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| George R. Osborne et al., Appellants, v Rossrock Fund II, L.P., Respondent. |
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MacVean, Lewis, Sherwin & McDermott P.C., Middletown, N.Y. (Kevin F. Preston and Ferol Reed McDermott of counsel), for respondent.
In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated August 4, 2009, which granted the defendant's motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (4), (5) and (7).
Ordered that the appeal by the plaintiff Patrisha Osborne is dismissed as abandoned (see 22 NYCRR 670.8 [a]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the defendant is awarded one bill of costs.
"Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821 [2006]; see Matter of Hunter, 4 NY3d 260, 269 [2005]). Here, the claims of the plaintiff George R. Osborne (hereinafter the appellant) arise out of the same transaction as those raised in a prior foreclosure action, and could have been raised in that prior action. Since the defendant mortgagee was awarded summary judgment on the complaint and dismissing, inter alia, the appellant mortgagor's counterclaim in the foreclosure action (see Rossrock Fund II, L.P. v Osborne, 82 AD3d 737 [2011] [decided herewith]), the doctrine of res judicata bars this action (see Cypress Hills Cemetery v City of New York, 67 AD3d 853, 854 [2009]). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (5).
In light of our determination, we need not address the appellant's remaining contentions. Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.