Contracts · MBE-tested
Ernest Holzberg, Appellant, v. Mutual Life Insurance Company of New York, Respondent
155 A.D.2d 278·New York Supreme Court, Appellate Division·1989·NY
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Opinion
Ernest Holzberg, Appellant, v Mutual Life Insurance Company of New York, Respondent.
[MAJORITY]
— Order, Supreme Court, New York County (Herman Cahn, J.), entered September 6, 1988, which granted a motion by defendant to dismiss the complaint on the grounds of res judicata, unanimously affirmed, without costs.
Res judicata has been applied where the second claim is based on a different theory of recovery but arises out of the same transaction as the first claim. (Smith v Sage Coll., 54 NY2d 185.) In this action, inter alla, for an order declaring the rights of the parties under an insurance contract, interpreting the coordination of benefits provisions of the new policy, the court properly granted dismissal given that plaintiff’s present action is identical to the previous lawsuit dismissed in 1983 in Westchester County, which determination was affirmed on appeal. Concur — Kupferman, J. P., Sullivan, Milonas, Rosenberger and Wallach, JJ.