Opinion
February 23, 1999
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
The dismissal with prejudice "so ordered" by the Federal court in the prior action between the parties constituted a final determination on the merits, with res judicata effect not only as to the matters litigated therein, but also as to all relevant issues that could have been but were not litigated therein ( Nemaizer v. Baker, 793 F.2d 58, 60-61; Schwartzreich v. E.P.C. Carting Co., 246 A.D.2d 439, 440-441). Such stipulation "cannot be collaterally attacked in State court" ( LaVigna v. Capital Cities/ABC, 245 A.D.2d 75, 76), and was not an executory accord since it was not conditional upon defendant's future performance of some obligation but was rather with prejudice ( see, Condo v. Mulcahy, 88 A.D.2d 497, 498-499).
Concur — Rubin, J. P., Mazzarelli, Andrias and Saxe, JJ.