Tom, J.P., Saxe, Ellerin, Lerner, Gonzalez, JJ.
Ralph H. Speken, M.D. and Stephanie Z. Speken, M.S.
Thomas R. Moore, Esq.,
Harris J. Zakarin
Order, Supreme Court, New York County (Walter Tolub, J.),
entered April 23, 2003, which, in an action for legal
malpractice, granted defendant’s motion to dismiss the complaint
on the grounds of, inter alia, res judicata, unanimously
affirmed, without costs.
The underlying action was for wrongful death based on
medical malpractice, and was settled just before trial. Two
attempts by plaintiff to vacate the settlement were denied, the
second on the ground that it was precluded by the denial of the
first (Speken v Columbia Presbyterian Med. Ctr., 278 AD2d 154;
Speken v Columbia Presbyterian Med. Ctr., 304 AD2d 489, lv denied
100 NY2d 511). The instant action, which claims that the
settlement was a product of plaintiffs’ attorney’s malpractice,
fraud and disloyalty, must be dismissed for the same reason;
indeed, this precise claim was made and necessarily rejected in
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