Opinion
16/2042
08-01-2017
Sheila Marie Redmond TAMME, Plaintiff, v. Robert W. KESSLER, Gordon S. Dickens, and Woods Oviatt Gilman, LLP, Defendants.
Attorney for Plaintiff: John J. Mueller, Esq. Attorney for Defendants: Donald W. O'Brien, Jr., Esq.
Attorney for Plaintiff: John J. Mueller, Esq.
Attorney for Defendants: Donald W. O'Brien, Jr., Esq.
DECISION AND ORDER
J. Scott Odorisi, J.
This is a second legal malpractice lawsuit. Pending before the Court is Defendants' summary judgment motion. Based upon a review of: Defendants' Notice of Motion, dated May 8, 2017, and Donald W. O'Brien, Jr., Esq.'s Affirmation, dated May 5, 2017, with exhibits - both submitted in support of the motion; the John J. Mueller, Esq.'s Affirmation, dated June 23, 2017, with exhibits - submitted in opposition to the motion ; Mr. O'Brien's Reply Affirmation, dated July 7, 2017, with exhibits - submitted in further support of the motion, as well as upon oral argument at Special Term, this Court GRANTS the motion for the legal reasons laid out hereinafter.
The Court was not provided with a complete and signed affidavit from Nicole Marlow-Jones, Esq. - as pages 7 & 8 were missing - thus, this document was not considered. See CPLR 2106 (a) & 2214 (b). In the alternative, consideration of the same did not alter the Court's final decision.
LAWSUIT FACTS
Background Information
Plaintiff Sheila Marie Redmond Tamme ("Plaintiff") hired Defendants Robert W. Kessler ("Kessler"), Gordon S. Dickens ("Dickens"), and Woods Oviatt Gilman, LLP ("Woods Firm") in March of 2011 to represent her in regards to her mother's estate in Monroe County Surrogate's Court wherein her sisters were contesting their mother's trust, will, and several hundreds of thousands of dollars of gifts to Plaintiff. On February 11, 2013, Plaintiff fired Defendants - at a time when she owed seven (7) months worth of legal fees totaling $204,272.66.
During a later 2013 fee application in Surrogate's Court [O'Brien Atty Aff., Ex. No.'s 1-3], which Plaintiff opposed on the merits, Judge Edmond A. Calvaruso directed Plaintiff, by Order, to amend her answer to add a legal malpractice counterclaim against Defendants because it was a related issue [O'Brien Atty Aff., Ex. # 4].
Procedural History
Instead of bringing the malpractice counterclaim in Surrogate's Court as ordered, and on September 12, 2014, Plaintiff filed a prior lawsuit in Supreme Court for professional negligence against Defendants for their alleged mishandling of the estate litigation. For this first lawsuit, Plaintiff was initially represented by the Michaels & Smolak law firm. Defendants moved in Surrogate's Court to join the first malpractice lawsuit with the estate fee case, but Plaintiff opposed that relief [O'Brien Atty Aff., Ex. # 5].
While the consolidation motion was pending in Surrogate's Court, and in April of 2015, Michaels & Smolak moved to be relieved as Plaintiff's counsel in the malpractice suit. On July 13th, this Court signed a withdrawal Order giving Plaintiff sixty (60) days to hire a new lawyer or advise of her pro se status - neither of which she did [O'Brien Atty Aff., Ex. # 6]. As a result of this non-compliance, and on October 15th, this Court signed an Order dismissing the case without prejudice [O'Brien Atty Aff., Ex. # 7].
On March 1, 2016, Plaintiff filed a second malpractice lawsuit - the present matter before this Court [O'Brien Atty Aff., Ex. # 8]. This second case has the following causes of action:
This filing temporarily stayed the long-delayed fee dispute in Surrogate's Court.
* 1st - Lawyer malpractice - negligence (adverse deviation from the applicable standard-of-care) by Kessler and Dickens [¶¶ 40-43]
* 2nd - Lawyer malpractice - negligent breach by Kessler of legal fiduciary-duty (adverse deviation from the applicable standard-of-conduct) [¶¶ 44-56]
* 3rd - Intentional breach of fiduciary duty - knowing, deliberate, intentional, and wanton conduct by Kessler breaching civil, legal fiduciary-duty (intentional adverse deviation from the applicable standard-of-conduct) [¶¶ 57-63]
* 4th - Lawyer malpractice - negligent breach by Dickens of legal fiduciary-duty (adverse deviation from the applicable standard-of-conduct) [¶ 64-75]
* 5th - Intentional breach of fiduciary duty - knowing, deliberate, intentional, and wanton conduct by Dickens breaching civil, legal fiduciary-duty (intentional adverse deviation from the applicable standard-of-conduct) [¶¶ 76-82]
* 6th - Lawyer malpractice - negligent breach by Kessler and Dickens of civil, legal fiduciary-duty (adverse deviation from the applicable standard-of-conduct) [¶¶ 83-88]
* 7th - Intentional breach of fiduciary duty - knowing, deliberate, intentional, and wanton conduct by Kessler and Dickens breaching civil, legal fiduciary-duty (intentional adverse deviation from the applicable standard-of-conduct) [¶¶ 89-94]
* 8th - Vicarious liability of the Woods Firm [¶¶ 95-103]
* 9th - Breach of contract - breach of retainer agreement or employment agreement [¶¶ 104-106]
On March 21st, Defendants moved pre-answer to dismiss the second suit, but this Court denied the same on June 1st given the "without prejudice" wording of the October 15th Dismissal Order.
On March 29th through April 5th, the new Surrogate Judge held a trial, with final post-trial submissions made on July 11th [O'Brien Atty Aff., Ex. # 13].
In the Summer of 2016, Defendants moved for a stay before this Court to permit the Surrogate to issue a final ruling on their fee application. On August 17th, this Court granted the stay to preserve judicial resources and avoid inconsistent outcomes [O'Brien Atty Aff., Ex. # 14].
In a Decision, dated March 27, 2017, Judge John M. Owens first found that the Letter of Engagement between Plaintiff and Defendants was valid and enforceable [O'Brien Atty Aff., Ex. # 15, p. 4; see also Ex. # 16]. Also, Judge Owens determined that Defendants were not fired for cause, they did not breach a legal duty, and they exercised the required degree of care in their representation of Plaintiff [pp. 5, 7]. In addition, Judge Owens rejected Plaintiff's allegations of a conflict of interest, a lack of communication, and excessive billing [pp. 5-7]. Due to these findings, Judge Owens declined to disgorge $182,979.34 of pre-paid legal fees. However, Judge Owens, due to only overlapping attorney work, reduced Defendants' fees by $24,535.50, thereby making the fee award $179,737.16, plus $2,312.86 in unpaid disbursements [pp. 11, 13].
The total confirmed legal fees was $365,029.36 - 93.7% of the whole amount in dispute.
By way of an Order, dated May 2nd, this Court lifted the stay [O'Brien Atty Aff., Ex. # 17]. The very next day, Defendants submitted their Answer in which they alleged as an affirmative defense that the second case was barred by res judicata , collateral estoppel, and/or issue preclusion [O'Brien Atty Aff., Ex. # 18, ¶¶ 108, 113].
Brief Summary of Motion Contentions
By way of a motion filed May 9th, Defendants seek a summary judgment dismissal based upon the Surrogate's favorable fee ruling. Defendants contend that the second lawsuit is now barred by res judicata and/or collateral estoppel based upon the Surrogate's ruling awarding them almost all of their attorneys' fees, and the express rejection of Plaintiff's various claims against them. Also, Defendants argue that the breach of contract and breach of fiduciary claims are duplicitous to the malpractice claim, and that Judge Owens also found against a just cause firing. Additionally, Defendants submit that Plaintiff is precluded from raising new issues in opposition to the present motion as she failed to combine her professional negligence claims before the Surrogate.
Plaintiff opposes the motion because the fee proceeding before the Surrogate: was merely "collateral;" it did not afford her due process [i.e. , a full and fair opportunity]; and, it did not result in a valid "final judgment" given proof constraints allegedly placed on her; thus, the decision therein is not entitled to preclusive effect. More specifically, Plaintiff claims that Judge Owens barred her from raising various issues she wanted, including expert proof to substantiate Defendants' purported professional negligence. Plaintiff further contends that the individual defendants - Kessler and Dickens - cannot benefit from any form of preclusion as they were not parties to the Surrogate's fee proceeding. In the alternative, Plaintiff asserts that an exception applies, namely the permissive counterclaim rule which allows for such separate litigation.
Plaintiff disingenuously claims that she was not permitted to seek affirmative monetary recovery against Defendants despite her specific disgorgement request, which would have qualified as a refund [P's MOL, p. 29]. Plaintiff concedes that she was permitted to argue various defenses [P's MOL, p. 30].
Defendants reply that Plaintiff did not deny their material contentions; thus, summary judgment is appropriate. Furthermore, Defendants argue that Plaintiff ignored the well settled authority that a fee award - regardless of where or how entered - precludes a malpractice claim. Moreover, Defendants refute the application of the permissive counterclaim rule because Plaintiff still made the same contentions in form of defenses, which Judge Owens expressly rejected. Finally, Defendants indicate that they all are entitled to invoke preclusion, even Kessler and Dickens, because they were in privity with the Woods Firm.
This Court agrees with Defendants on the law as hereinafter explained.
LEGAL DISCUSSION
Summary Judgment Standard
The starting place for analyzing the motion for summary judgment is the CPLR itself, which provides in pertinent part that:
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.
CPLR 3212 (b) (emphasis added).
CPLR 3212 (b)'s summary judgment provision means that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" necessitating a trial. Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 (1986). Proof offered by a moving party must be in admissible form. See Zuckerman v. City of New York , 49 NY2d 557, 562 (1980) ; Dix v. Pines Hotel, Inc. , 188 AD2d 1007 (4th Dept 1992).
Once a prima facie showing has been made, then "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez , 68 NY2d at 324. See also Mortillaro v. Rochester Gen. Hosp. , 94 AD3d 1497, 1499 (4th Dept 2012). "Bald conclusory assertions, even if believable, are not enough [to defeat summary judgment]." S. J. Capelin Assoc., Inc. v. Globe Mfg. Corp. , 34 NY2d 338, 342 (1974). See also Mallad Const. Corp. v. County Fed. Sav. & Loan Ass'n , 32 NY2d 285, 290 (1973) ; State Farm Fire & Cas. Co. v. Ricci , 96 AD3d 1571, 1574 (4th Dept 2012) (reversing denial of summary judgment motion as the opposing party's speculation was insufficient to overcome the same).
Finally, summary judgment is not contradicted on a question of law. See Port of New York Auth. v. 62 Cortlandt St. Realty Co. , 18 NY2d 250, 255 (1966) ; Harper v. Lumbermens Mut. Cas. Co. , 174 AD2d 1031 (4th Dept 1991) (granting summary judgment on question of law). See also Bannon v. Bannon , 270 NY 484, 490 (1936) (res judicata is "a question of law") [P's MOL, p. 18].
The Court will next apply the above standard to Defendants' motion which is premised upon the legal issues of res judicata and/or collateral estoppel. See Buechel v. Bain , 97 NY2d 295, 299 (2001) (prior judicial decision on attorneys' fee arrangement functioned as collateral estoppel to subsequent litigation concerning the same); Barrett v. Setright , 193 AD2d 1094, 1095 (4th Dept 1993) (affirming summary judgment dismissal of third-party action sounding in legal malpractice based upon res judicata ).
Plaintiff concedes that the motion addresses a pure question of law [P's MOL, pp. 15, 17, 18].
Res Judicata / Collateral Estoppel
Defendants are entitled to summary judgment on their purely legal defenses of claim and/or issue preclusion. See e.g. Parker v. Blauvelt Volunteer Fire Co., Inc. , 93 NY2d 343, 347 (1999) (affirming dismissal under the doctrine of collateral estoppel) [P's MOL, pp. 20-21]; Spring v. County of Monroe , 151 AD3d 1694 (4th Dept 2017) (Supreme Court erred in not dismissing legal malpractice claim that was barred by collateral estoppel); Troy v. Goord , 300 AD2d 1086 (4th Dept 2002) (reversing and dismissing complaint based upon claim preclusion due to prior dismissal of federal lawsuit covering the same transaction). As in Parker , Spring , and Troy , a dismissal is also warranted in the present matter. See also Pinnacle Consultants, Ltd. v. Leucadia Nat. Corp. , 94 NY2d 426, 431 (2000) (deciding that the plaintiff's claims were barred by collateral estoppel); Burton v. Matteliano , 81 AD3d 1272, 1275 (4th Dept 2011) (sustaining dismissal upon the finding that the plaintiff was barred by the doctrine of res judicata from asserting claim that was the subject of an earlier federal court dismissal).
Starting with the broader principle of res judicata , or claim preclusion, it "gives ‘binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action ... from subsequently relitigating any questions that were necessarily decided therein ...’ " Watts v. Swiss Bank Corp. , 27 NY2d 270, 277 (1970) (internal citation omitted). See also Siegel's, NY Prac., § 442, p. 772 ; § 443, p. 773; § 444, pp. 776-777; § 446, pp. 778-779 (5th ed 2011). This rule "applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation." In re Hunter , 4 NY3d 260, 269 (2005) (emphasis added) [P's MOL, p. 20]. See also Siegel's, NY Prac., § 447, pp. 779-781 (5th ed 2011). As the Court of Appeals decreed:
This State has adopted the transactional analysis approach in deciding res judicata issues ... Under this address, once a claim is brought to a final conclusion , all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy ... That proceeding having been brought to a final conclusion, no other claim may be predicated upon the same incidents.
O'Brien v. City of Syracuse , 54 NY2d 353, 357 (1981) (affirming complaint dismissal) (internal citation omitted and emphasis added). See also Smith v. Russell Sage Coll. , 54 NY2d 185, 192 (1981) (acknowledging a more pragmatic test for res judicata, and then dismissing second lawsuit); Kenford Co., Inc. v. County of Erie , 185 AD2d 658 (4th Dept 1992).
As the Fourth Department has ruled, the above wider transactional approach still applies even:
‘if there are variations in the facts alleged, or different relief is sought, the separately stated "causes of action" may nevertheless be grounded on the same gravamen of the wrong upon which the action is brought.’ This holds true even when ‘several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts or would call for different measures of liability or different kinds of relief’
Baldo v. Mar. Midland Bank, N.A. , 219 AD2d 807 (4th Dept 1995) (affirming res judicata dismissal) (internal citations omitted and emphasis added). See also Schwartz v. Pub. Adm'r of Bronx County , 24 NY2d 65 (1969).
A narrower sub-set of res judicata is collateral estoppel - which is sometimes also called issue preclusion. See Siegel's, NY Prac., § 443, pp. 773-774 ; § 457, pp. 794-795 (5th ed 2011). Collateral estoppel requires two elements: (1) an identity of issue which has necessarily been decided in the prior action; and, (2) a full and fair opportunity to contest the decision. See Shanley v. Callanan Indus., Inc. , 54 NY2d 52, 55 (1981) ; Carucci v. Hanna , 70 AD2d 772 (4th Dept 1979) (adjudicating that the plaintiff was collaterally estopped from claiming that the defendants acted wrongfully; thus, action needed to be dismissed) [P's MOL, p. 26]; Siegel's, NY Prac., § 458, pp. 795-797 ; § 462, pp. 801-803 (5th ed 2011).
Both of the above preclusive rules are applicable to the legal fee/legal malpractice context. See Simao v. Green & Seifter, Attorneys., P.C. , 213 AD2d 1018 (4th Dept 1995). See also Burkhart v. Modica , 81 AD3d 1356, 1358 (4th Dept 2011). As the Fourth Department held in Simao :
[the] Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint in this legal malpractice action. The entry of a judgment in favor of defendant Green & Seifter, Attorneys, P.C., against plaintiff in a prior action to recover fees for legal services bars a malpractice action regarding those same legal services
Id. (emphasis added) (citing Blair v. Bartlett , 75 NY 150, 151 (1878) ). See also Lefkowitz v. Schulte, Roth & Zabel , 279 AD2d 457 (2d Dept 2001) (by "virtue of the Surrogate's decree fixing the value of the defendant's services, the court necessarily concluded that there was no malpractice," and then applied collateral estoppel and res judicata to dismiss the professional negligence claim).
In the present matter, and per Simao , this Court concludes that Plaintiff's complaint is now barred, as a matter of law, as a result of the Surrogate's recent fee decision in Defendants' favor. See also Chisholm-Ryder Co., Inc. v. Sommer & Sommer , 78 AD2d 143, 144 (4th Dept 1980) (affirming grant of motion to dismiss a later malpractice case as the defendant law firm was awarded summary judgment on its earlier lawsuit to recover its attorneys' fees).
To start, Defendants set forth a prima facie case of, at the very least, issue preclusion, if not also total claim preclusion. See e.g. Matter of Ranni's Claim , 58 NY2d 715, 718 (1982) (decreeing that the claimant was precluded from relitigating factual issue due to issue preclusion) [P's MOL, p. 19]; Castiglia v. Colonial Pines, Inc. , 187 AD2d 994 (4th Dept 1992) (concluding that res judicata barred new litigation which asserted the same claims previously resolved in a prior action). Plaintiff concedes that Defendants met their moving burden [P's MOL, p. 17]. See Kuehne & Nagel, Inc. v. Baiden , 36 NY2d 539, 544 (1975) ("Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted"); Signor v. City of Rochester , 73 AD2d 837 (4th Dept 1979).
Plaintiff failed to overcome Defendants' admitted initial summary judgment showing. See e.g. Roller v. Walsh , 13 AD3d 1135, 1136 (4th Dept 2004) (in legal malpractice case, the plaintiff failed to overcome the defendant's summary judgment motion predicated on issue preclusion).
First, and contrary to Plaintiff's threshold opposition position, the fee proceeding before Judge Owens was not merely "collateral" in light of the binding holdings in Simao and Chisholm-Ryder Co., Inc. dispelling malpractice after any type of favorable fee ruling. Cf. Buechel , 97 NY2d at 299 ; Burkhart , 81 AD3d at 1358. Plaintiff did not dispute these binding appellate rulings, as well as the wealth of other legal authority Defendants offered, in order to escape their damaging effect on her case. See also Lefkowitz , 279 AD2d at 457. Furthermore, Plaintiff's attempt at oral argument to distinguish her case based upon its procedural history was unavailing. This Court agrees with Plaintiff that neither res judicata or collateral estoppel yet applied at the time that the second professional negligence case was commenced in March of 2016. However, and once Judge Owens issued his decision and Defendants thereafter answered raising those legal defenses, res judicata and/or collateral estoppel were properly interjected into the case and became valid considerations as to whether the matter could proceed forward. This application of the legal rules is consistent with the judicial objectives behind claim and issue preclusion. See DeRosa v. Dyster , 129 AD3d 1506 (4th Dept 2015) (preclusion principles are aimed at avoiding "repetitive litigation").
Plaintiff's suggestion at Special Term that this Court wholesale authorized this litigation when it declined to dismiss the case pre-answer is erroneous as that ruling was limited to the scope of the earlier "without prejudice" dismissal, and was made prior to Judge Owens' decision and Defendants' answer. In other words, the dismissal denial in no way can be equated to a rejection of res judicata and/or collateral estoppel.
Second, Plaintiff did not dispel that she was afforded a full and fair opportunity to litigate the quality of Defendants' work. See D'Arata v. New York Cent. Mut. Fire Ins. Co. , 76 NY2d 659, 664 (1990) (affirming complaint dismissal because the plaintiff did not prove that he was denied his day in court) [P's MOL, pp. 27-28]; Roller , 13 AD3d at 1136. To begin with, it is Plaintiff's own fault that a formal legal malpractice counterclaim was not pleaded in front of Surrogate's Court. Plaintiff disobeyed Judge Calvaruso's Order to interpose a legal malpractice counterclaim in the fee proceeding, and instead filed a separate action which was dismissed due to her inaction. Moreover, Plaintiff opposed Defendants' efforts to consolidate the fee proceeding with the first legal malpractice lawsuit. Only after filing a second legal malpractice lawsuit did Plaintiff finally seek to combine the same with the fee proceeding, but then only to secure an adjournment of the long-standing fee matter. Having charted this awkward procedural course, Plaintiff must be bound by the same. In fact, Plaintiff acknowledged at the motion return date that she intentionally engaged in procedural maneuvering; thus, she must accept the outcome of the those failed tactics. See Buechel , 97 NY2d at 309 ("Our holding makes plain that the law will not sanction such tactical maneuvering at the price of efficiency and consistent judgments where parties have not shown that they lacked a full and fair opportunity to be heard" {emphasis added} ).
More importantly, and even without a legal malpractice counterclaim, Plaintiff still litigated Defendant's work via numerous defenses and other counterclaims; therefore, Plaintiff received far more than a mere "abstract" opportunity to test her allegations. In light of Plaintiff's varied allegations, Judge Owens made a clear ruling negating a "for cause" firing [i.e. breach of contract {letter of engagement} ] (see e.g. Shirley v. Danziger , 252 AD2d 969, 971 (4th Dept 1998) (applying collateral estoppel to breach of contract claim against the plaintiff's former law firm) ), as well as express findings of: no breach of a legal duty; the exercise of the required degree of care; no conflicts of interest; no lack of communication; and, no excessive billing - all of which form the basis of Plaintiff's present causes of action in this forum. See Reilly v. Reid , 45 NY2d 24, 29 (1978) (differences in legal theory will not permit re-litigation of claims based on the same gravamen) [P's MOL, p. 21]; Englert v. Schaffer , 61 AD3d 1362, 1363 (4th Dept 2009) (finding that the plaintiffs could not re-litigate a factual issue " ‘even if based upon [a] different theor[y] or if seeking a different remedy’ "). Under the very broad, transactional approach to preclusion, Plaintiff's present, re-cast claims fail as a matter of law.
"A conflict of interest, even if a violation of the Code of Professional Responsibility, does not by itself support a legal malpractice cause of action." Schafrann v. N.V. Famka, Inc. , 14 AD3d 363, 364 (1st Dept 2005).
Plaintiff's effort to escape Judge Owen's explicit determinations against her on the ground that she was likely precluded from offering expert proof of legal malpractice falters. As acknowledged at Special Term, Plaintiff's evidence preclusion proposition is based upon only an inference from Judge Calvaruso's Order, and is thus wholly conjectural. See S. J. Capelin Assoc., Inc. , 34 NY2d at 341 ("A shadowy semblance of an issue is not enough to defeat the [summary judgment] motion"); Sullivan v. Welsh , 132 AD2d 945, 946 (4th Dept 1987). Plaintiff does not specifically identify any concrete instance wherein she was foreclosed from offering proof of Defendants' alleged incompetence. Contrary to Plaintiff's suggestion, her hands were not tied in how she litigated the plethora of allegations against Defendants in Surrogate's Court. Cf. Postal Tel. Cable Co. v. City of Newport, Ky. , 247 US 464 (1918) (res judicata could not apply against a party who was not part of prior proceeding and thus was per se not given an opportunity to be heard) [P's MOL, p. 24]. Unlike Plaintiff's case of Postal Tel. Cable Co. , she was a party to the fee proceeding and was afforded a meaningful chance to voice her positions so that preclusion may be properly employed against her. See e.g. Kigin v. State of New York Workers' Compensation Bd. , 24 NY3d 459, 469 (2014) (deciding that the claimant was provided with a meaningful opportunity to be heard) [P's MOL, p. 25]. See also Mathews v. Eldridge , 424 US 319 (1976) ; Kaur v. New York State Urban Dev. Corp. , 15 NY3d 235, 260 (2010) (finding sufficient due process); State v. Farnsworth , 75 AD3d 14, 20 (4th Dept 2010) (same).
Third, Plaintiff's argument that Kessler and Dickens have no right to invoke any form of preclusion because they were not named parties to the Surrogate's fee proceeding is invalid. See e.g. Covanta Niagara, L.P. v. Town of Amherst , 70 AD3d 1440, 1442 (4th Dept 2010) (agreeing that the new named defendant was in privity with the prior defendant, and was thus entitled to invoke res judicata as a defense). Same as in Covanta Niagara, L.P. , both Kessler and Dickens are united in interest with the Woods Firm who actively prosecuted the fee proceeding. Any form of preclusion - whether claim or issue - is contingent on the identity of the party against whom the principle is being applied, not whether the party seeking to enforce preclusion is the same. See Koch v. Consol. Edison Co. of New York, Inc. , 62 NY2d 548, 556 (1984) (noting that the former res judicata requirement of mutuality is "a dead letter," and permitting third-party to enforce issue preclusion). Consequently, Kessler and Dickens may legitimately rely upon preclusion to secure termination of the case at hand.
Fourth, Plaintiff's alternative permissive counterclaim assertion cannot withstand judicial review. See e.g. Chisholm-Ryder Co., Inc. , 78 AD2d at 146 (rejecting permissive counterclaim argument to avoid res judicata dismissal). As in Chisholm-Ryder Co., Inc. , the present Plaintiff also has no legal ground to avoid a summary judgment dismissal. Plaintiff is correct that, normally, a party is not obligated to counterclaim, and may pursue the same claim in an independent action. See CPLR 3011 ("answer may include a counterclaim" {emphasis added} ); Henry Modell and Co., Inc. v. Minister, Elders and Deacons of Refm. Prot. Dutch Church of City of New York , 68 NY2d 456, 461 (1986). Nevertheless, Plaintiff disobeyed a court order compelling a legal malpractice counterclaim, so Plaintiff's procedural conundrum was entirely of her own creation. Further, and more critically, is that the Surrogate still addressed the merits of Plaintiff's present causes of action - albeit in the form of defenses and other counterclaims- and he expressly rejected all of them! See e.g. John Grace & Co., Inc. v. Tunstead, Schechter & Torre , 186 AD2d 15, 19 (1st Dept 1992) (adjudicating that legal malpractice claim was barred by res judicata and collateral estoppel because the plaintiff raised the same in the form of an affirmative defense to attorney lien application which it lost). In all, and even though Plaintiff was not presumptively barred from starting this separate action, once Judge Owens ruled against her, she was then foreclosed from continuing on and getting the proverbial second bite at the apple. To permit otherwise would wholly undermine the preclusion doctrines. See Buechel , 97 NY2d at 309 ; DeRosa , 129 AD3d at 1506.
Lastly, Plaintiff utterly failed to address Defendants' motion contention that the breach of fiduciary duty claims are improperly duplicative of any legal malpractice claims. See e.g. Waggoner v. Caruso , 14 NY3d 874 (2010) (affirming dismissal of duplicative breach of fiduciary duty claim); In re HSBC Bank U.S.A. , 70 AD3d 1324, 1325 (4th Dept 2010) (affirming dismissal of breach of fiduciary duty claim that was duplicative of legal malpractice claim). Those repetitive claims must be dismissed. See e.g. Dischiavi v. Calli , 68 AD3d 1691, 1693-1694 (4th Dept 2009) (affirming summary judgment dismissal of duplicative breach of fiduciary duty claim against the defendant attorneys).
In sum, Defendants are awarded a summary judgment dismissal of the entire case. See e.g. Zayatz v. Collins , 48 AD3d 1287, 1289 (4th Dept 2008) (lower court properly granted a dismissal based upon res judicata ); Doherty v. Cuomo , 76 AD2d 14, 23 (4th Dept 1980) (finding that the state was barred from pursuing second proceeding, and dismissing the complaint) [P's MOL, p. 19]. See also In re Small Smiles Litig. , 109 AD3d 1212, 1213 (4th Dept 2013) (trial court erred in not dismissing redundant breach of fiduciary duty claims), rearg denied , 112 AD3d 1386.
CONCLUSION
Based upon all of the foregoing, it is the Decision and Order of this Court that Defendants' entire summary judgment motion is GRANTED . Accordingly, Plaintiff's Complaint is DISMISSED .