                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 10, 2014                      517657
________________________________

JAMIE E. TOVAR,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

TESOROS PROPERTY MANAGEMENT,
   LLC., et al.,
                    Respondents.
________________________________


Calendar Date:    May 30, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                              __________


      Charny & Associates, Rhinebeck (Nathaniel K. Charny of
counsel), for appellant.

      Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady
(Peter V. Coffey of counsel), for respondents.

                              __________


Stein, J.P.

      Appeal from an order of the Supreme Court (Platkin, J.),
entered December 28, 2012 in Albany County, which granted
defendants' motion to dismiss the complaint.

      In 2007 and 2008, plaintiff was employed by defendants
Charles Herman and Gloria Herman, the owners and operators of
defendant Tesoros Property Management, LLC, to perform remodeling
work pursuant to an oral understanding. In October 2008,
plaintiff commenced a small claims action against Tesoros in
Schenectady City Court for unpaid wages for work from June 2008
through August 2008. After considering the parties' testimony,
City Court dismissed the claim. More than three years later,
plaintiff commenced this action against defendants seeking unpaid
                              -2-                517657

wages for work that he allegedly performed between August 2007
and March 2008. Defendants moved to dismiss the complaint,
contending, among other things, that the claim was barred by res
judicata (see CPLR 3211 [a] [5]). Supreme Court agreed with
defendants, granted the motion and dismissed the complaint. This
appeal by plaintiff ensued and we affirm.

       We reject plaintiff's contention that City Court's
judgment does not preclude this claim because plaintiff now seeks
recovery of unpaid wages for a different period of time than the
time for which he sought to recover in the small claims action.
Under the doctrine of res judicata, "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"
(O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see Matter
of Josey v Goord, 9 NY3d 386, 389-390 [2007]; Parker v Blauvelt
Volunteer Fire Co., 93 NY2d 343, 347 [1999]), so long as "the
party to be barred had a full and fair opportunity to litigate
any cause of action arising out of the same transaction and the
prior disposition was a final judgment on the merits" (Kinsman v
Turetsky, 21 AD3d 1246, 1246 [2005], lv denied 6 NY3d 702 [2005];
see Matter of Feldman v Planning Bd. of the Town of Rochester, 99
AD3d 1161, 1162-1163 [2012]). Thus, where those requirements
have been met, if "a plaintiff in a later action brings a claim
for damages that could have been presented in a prior [action]
against the same party, based upon the same harm and arising out
of the same or related facts, the claim is barred by res
judicata" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347-
348 [emphases added]; see Matter of Hunter, 4 NY3d 260, 269
[2005]; See Why Gerard, LLC v Gramro Entertainment Corp., 94 AD3d
1205, 1207 [2012]; Rowley, Forrest, O'Donnell & Beaumont, P.C. v
Beechnut Nutrition Corp., 55 AD3d 982, 984 [2008]). Stated
another way, "when a plaintiff brings an action for only part of
his [or her] cause of action, the judgment obtained in that
action precludes him [or her] from bringing a second action for
the residue of the claim" (Stoner v Culligan, Inc., 32 AD2d 170,
171-172 [1969]; see Sannon-Stamm Assoc., Inc. v Keefe, Bruyette &
Woods, Inc., 68 AD3d 678, 678 [2009]; Lanuto v Constantine, 215
AD2d 946, 947 [1995]).
                              -3-                517657

      Here, the record reflects that plaintiff had a full
opportunity to litigate the issues relating to his small claim
for unpaid wages in City Court and such court's disposition was a
final decision on the merits. It is also evident that the claim
brought by plaintiff in City Court and the instant action arise
out of the same series of transactions in connection with his
work for defendants. Although the present action concerns wages
allegedly owed for a different time period than the City Court
claim, inasmuch as it had matured at the time that plaintiff
commenced the prior action (see 2B Carmody-Wait § 16:2; compare
Sannon-Stamm Assoc., Inc. v Keefe, Bruyette & Woods, Inc. 68 AD3d
at 678), plaintiff could have also raised the current claim at
that time (see See Why Gerard, LLC v Gramro Entertainment Corp.,
94 AD3d at 1207; Kinsman v Turetsky, 21 AD3d at 1247; Matter of
Carella v Collins, 272 AD2d 645, 647 [2000]) and was not entitled
to split his claim for unpaid wages into separate actions (see
Swiss Hamlet Homeowners Assoc., Inc. v Souza, 13 Misc 3d 87, 88
[2006]; see also Yarmosh v Lohan, 16 Misc 3d 1119[A], 2007 NY
Slip Op 51513[U] [Dist Ct, Suffolk County 2007]; 2B Carmody-Wait
2d §§ 16:1; 16:6).

      Plaintiff's further contention that UCCA 1808 deprives City
Court's judgment of any res judicata effect is also unavailing.
We subscribe to the view that the language of this statute, as
amended in 2005, only prevents small claims judgments from having
issue preclusion effect (collateral estoppel), but not from
having claim preclusion effect (res judicata), in subsequent
actions (see Merrimack Mut. Fire Ins. Co. v Alan Feldman Plumbing
& Heating Corp., 102 AD3d 754, 754-755 [2013]; Gerstman v
Fountain Terrace Owners Corp., 31 Misc 3d 148[A] [2011]; cf.
McGee v J. Dunn Constr. Corp., 54 AD3d 1010 [2008]; Katzab v
Chaudhry, 48 AD3d 428 [2008]; see also UDCA 1808; Gore v Mackie,
278 AD2d 879, 880 [2000]; Assembly Sponsor's Mem, Bill Jacket, L
2005, ch 443, at 3; David D. Siegel, 1995 Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 29A, UCCA 1808,
2014 Pocket Part at 289; Siegel, NY Prac § 585 at 1044-1045 [5th
ed 2011]; 73A NY Jur 2d, Judgments § 439). As the elements of
res judicata were otherwise satisfied here, Supreme Court
correctly dismissed the complaint on that basis. Plaintiff's
remaining contentions are either without merit or have been
rendered academic by this decision.
                        -4-                  517657

McCarthy, Egan Jr., Lynch and Clark, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
