State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 519531 

________________________________

JOSHUA BERNSTEIN,

Appellant,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Respondent.

________________________________

Calendar Date: April 30, 2015

Before: Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

__________

Joshua Bernstein, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura

Etlinger of counsel), for respondent.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Lynch, J.),

entered October 16, 2013 in Albany County, which granted

defendant's motion to dismiss the complaint.

In 2001, plaintiff was disbarred from the practice of law

by the Second Department, which sustained one charge of

professional misconduct based upon plaintiff's conversion of

client funds for his own use (Matter of Bernstein, 285 AD2d 233

[2001], appeal dismissed 97 NY2d 725 [2002]). Following

unsuccessful attempts to reargue and/or appeal his disbarment,

plaintiff commenced a declaratory judgment action in federal

court alleging a violation of his 14th Amendment due process

rights. After plaintiff's claims were dismissed as barred by,

among other things, res judicata (Bernstein v New York, 2007 WL

438169, 2007 US Dist LEXIS 11322 [SD NY 2007]), plaintiff
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commenced a second action in federal court, again asserting a due

process claim and, further, challenging the constitutionality of

Judiciary Law § 90 (2). This action was dismissed based upon

11th Amendment immunity grounds (Bernstein v New York, 2012 WL

1655783, 2012 US Dist LEXIS 66031 [SD NY 2012]).

Plaintiff then commenced the present declaratory judgment

action in May 2013, contending that the Second Department was

biased against him and again claiming that Judiciary Law § 90 (2)

was unconstitutional. Defendant moved to dismiss the complaint

as barred by res judicata or, in the alternative, by the

applicable statute of limitations. Supreme Court granted

defendant's motion upon res judicata grounds, and plaintiff now

appeals.

We affirm. The doctrine of res judicata bars a party from

litigating a claim where a final judgment on the merits has been

rendered on the same subject matter, between the same parties

(see Matter of Hunter, 4 NY3d 260, 269 [2005]; Tovar v Tesoros

Prop. Mgt., LLC, 119 AD3d 1127, 1128 [2014]). Thus, "'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'" (Matter of Bemis v Town of Crown Point, 121 AD3d 1448,

1450-1451 [2014], quoting O'Brien v City of Syracuse, 54 NY2d

353, 357 [1981]; accord Tovar v Tesoros Prop. Mgt., LLC, 119 AD3d

at 1128). Additionally, "res judicata bars not only those claims

that were actually litigated previously, but also those which

might have been raised in the former action" (Moss v Medical

Liab. Mut. Ins. Co., 224 AD2d 762, 763 [1996] [internal quotation

marks, brackets and citation omitted]).

Plaintiff's present claims – that he had a valid retaining

lien on the subject funds and that Judiciary Law § 90 (2) is

unconstitutional – clearly stem from his previously adjudicated

disbarment, for which a final judgment on the merits was

rendered. As such claims could have been raised during

plaintiff's disbarment proceeding or upon an appeal therefrom,

Supreme Court properly concluded that this action was barred by

res judicata (see Gerzof v Gulotta, 57 AD2d 821, 822 [1977],

appeals dismissed 42 NY2d 960, 973 [1977]). Plaintiff's
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remaining arguments on this point have been examined and found to

be lacking in merit.

Lahtinen, J.P., Garry and Rose, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court