| Marlett v Hennessy |
| 2008 NY Slip Op 07317 [55 AD3d 1283] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Ronald A. Marlett et al., Plaintiffs, v Richard A. Hennessy, Jr., et
al., Defendants. Charles M. Tebbutt et al., Third-Party Plaintiffs-Respondents, v Richard A. Hennessy, Jr., et al., Third-Party Defendants-Appellants. |
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Kevin A. Ricotta, Attorneys & counselors at Law, Buffalo (K. John Bland of counsel), for
third-party plaintiffs-respondents.
Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered September 25, 2007 in a legal malpractice action. The order denied the motion of defendants and third-party defendants to dismiss the third-party complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the motion of defendants and third-party defendants (Hennessy defendants) seeking to dismiss the third-party complaint based on the doctrine of res judicata. Because the cross claims asserted against the Hennessy defendants in the main action were not disposed of on the merits, the doctrine of res judicata does not apply to bar the direct third-party action against them (see Parada v City of New York, 283 AD2d 314, 316 [2001]; Scaccia v Wallin, 121 AD2d 709, 711 [1986]). Present—Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.