Barrett v. Setright

• Decision Date: 28 May 1993
• Docket Number: No. 1,1
• Citation: 598 N.Y.S.2d 886,193 A.D.2d 1094
• Court: New York Supreme Court — Appellate Division
• Parties: Joan A. BARRETT, Respondent, v. John C. SETRIGHT and Setright & Ciabotti, Attorneys-At-Law, Appellants and Third-Party Plaintiffs-Appellants. Roy Sanders and Roy Sanders, P.C., Third-Party Defendants-Respondents et al., Third-Party Defendants. Appeal

Page 886

598 N.Y.S.2d 886

193 A.D.2d 1094

Joan A. BARRETT, Respondent, v. John C. SETRIGHT and Setright & Ciabotti, Attorneys-At-Law,

Appellants and Third-Party Plaintiffs-Appellants. Roy

Sanders and Roy Sanders, P.C., Third-Party

Defendants-Respondents et al., Third-Party Defendants. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

May 28, 1993.

O'Hara & Hanlon by Kerry Hanlon, Syracuse, for appellants.

Andrews, Harris & Panels, by Michael Harris, Syracuse, for respondent.

Saperston & Day by Scott Jennette, Rochester, for third-party defendants-respondents.

Before CALLAHAN, J.P., and FALLON, DOERR and BOEHM, JJ.

MEMORANDUM:

In June 1979, Joan A. Barrett (plaintiff) and her husband, J. Patrick Barrett, entered into a separation agreement. Thereafter, in February 1980, plaintiff signed a power of attorney consenting to the jurisdiction of the Dominican Republic. In March 1980, Mr. Barrett obtained a divorce in the Dominican Republic; plaintiff appeared by proxy. The separation agreement was incorporated but not merged in the divorce decree. According to plaintiff, she learned in August 1980 that Mr. Barrett had grossly misrepresented his financial situation when the separation agreement was entered into. Thereafter, plaintiff retained defendants, John C. Setright and Setright & Ciabotti (Setright), who commenced an action in July 1981 to rescind the separation agreement, on the grounds, inter alia, of fraud and misrepresentation. In February 1986, on the eve of trial, apparently realizing that, before the separation agreement could be attacked, the power of attorney and judgment of divorce must first be set aside (see, Feinberg v. Feinberg, 40 N.Y.2d 124, 386 N.Y.S.2d 77, 351 N.E.2d 725), Setright moved for leave to amend the complaint to add a cause of action to set aside the Dominican Republic judgment of divorce. Supreme Court denied the motion on the ground of laches and dismissed the complaint on the ground that the separation agreement could not be attacked while the divorce decree remained in effect. On plaintiff's appeal, we affirmed (Barrett v. Barrett, 135 A.D.2d 1077, 523 N.Y.S.2d 297, lv. denied 71 N.Y.2d 805, 529 N.Y.S.2d 76, 524 N.E.2d 430) (Barrett I).

Upon the dismissal of Barrett I, plaintiff retained third-party defendants Roy Sanders and Roy Sanders, P.C. (Sanders) to prosecute a fraud action against her former husband (Barrett II). Third-party defendants Sidney P. Cominski and Sidney P. Cominski, P.C. (Cominski) appeared of counsel to Sanders in Barrett II. A summons with notice was served in Barrett II, but the action was dismissed in April 1987 for failure to serve a timely complaint.

Plaintiff then commenced this action, alleging that Setright's malpractice in not timely attacking the Dominican Republic divorce decree in Barrett I had deprived plaintiff of her available remedy to rescind the separation agreement and that, if Setright had properly framed the complaint to attack the divorce decree instead of the separation agreement, plaintiff would have prevailed. Setright brought a third-party action against attorneys Sanders and Cominski, alleging that any inability of the plaintiff to seek damages that may have resulted from her acceptance of the separation agreement was the product of the negligent failure to serve the complaint in Barrett II. Supreme Court granted summary judgment dismissing the third-party action and denied Setright's motion for summary judgment dismissing the complaint.

The motions of the third-party defendants were properly granted. The doctrine of res judicata precludes a party from relitigating a claim already litigated and from litigating a claim based upon the same facts and transactions underlying the previously litigated action (see, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Smith v. Russell Sage Coll., 54 N.Y.2d 185, 445 N.Y.S.2d...