(Murray v. National Broadcasting Co., Inc. 178 AD2d 157 [1st Dept 1991]);
(Strange v. Montefiore Hosp. and Medical Center, 59 NY2d 737 [1983][grant of a
motion for summary judgement resulting in [*9]dismissal of
complaint based on insufficiency of proof given res judicata effect]).
Moreover, the fact that the parties' March 2007 Stipulation allowed for restoration of
counterclaims, once the Supreme Court Action had ended, does not require a different result.
First, the Court finds that the parties did not intend that provision to allow for relitigation of
claims that were determined on the merits. At the time of the stipulation, the parties were not
even certain if an action had been or would be commenced. Paragraph 3 of the March 2007
Stipulation provides in pertinent part that it was a plenary action "commenced or soon to be
commenced in Supreme Court" and provided an index number and the parties.
Even once commenced, there was no way for the parties to know in March 2007 how the
Supreme Court Action would end, and whether there would be a final determination on the
merits. This is apparent from the language in paragraph 4 of the March 2007 Stipulation which
provides "(i)n the event ... the Supreme Court action is discontinued, dismissed or abandoned,
petitioner may move to restore this case to the calendar.... & Resp. would then have right to
pursue its cntrclms (sic)". The restoration of counterclaims in this proceeding can only have been
meant to apply in the event the Supreme Court Action ended without a final adjudication on the
merits as to those claims.
Even were the parties' intention otherwise, the Court is not required to enforce a stipulation
which allows retrial of a matter already litigated. The doctrine of res judicata is based on