Joint Trial/Consolidation 602

CPLR § 602 Consolidation
(a) Generally
(b) Cases pending in different courts

Alizio v Feldman, 2012 NY Slip Op 05378 (2nd Dept. 2012)

Where, as here, common questions of law or fact exist, a motion pursuant to CPLR 602(a) for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (id. at 1088; see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540, 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606). Here, the defendants failed to show prejudice to a substantial right if this action is joined with others for trial (see Moor v Moor, 39 AD3d 507, 507-508). Moreover, mere delay is not a sufficient basis to justify the denial of a joint trial (see Perini Corp. v WDF, Inc., 33 AD3d at 606; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494, 496).

Accordingly, the Supreme Court should have granted the plaintiffs' motion to join this action for trial with the action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, and several related actions previously joined for trial.

Matter of Matter of Rostkowski v Baginski, 2012 NY Slip Op 05177 (2nd Dept. 2012)

The petitioner's contention that the Family Court acted improperly by consolidating his petition with a petition in a related case is without merit. Although it is true that a court may not order consolidation sua sponte (see CPLR 602[a]; AIU Ins. Co. v ELRAC, Inc., 269 AD2d 412; Matter of Amy M., 234 AD2d 854, 855), here, there was no consolidation. The individual petitions were left intact. They were merely brought together to be heard on the same day. The captions of the individual petitions remained the same, and different determinations were rendered in separate orders.

Hae Sheng Wang v Pao-Mei Wang, 2012 NY Slip Op 05141 (2nd Dept. 2012)

The plaintiffs' cause of action alleging breach of contract involves issues of law and fact in common with those in the holdover proceeding pending in the Civil Court, and most of the parties are the same. "Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR 602(b)] should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010). The defendant did not make a showing that removal and consolidation would prejudice a substantial right. Therefore, those branches of the plaintiffs' motion which were to stay the holdover proceeding, to remove it to the Supreme Court, Queens County, and to consolidate it with this action should have been granted (see CPLR 602[b]; Kally v Mount Sinai Hosp., 44 AD3d at 1010-1011).

The case also has a discussion about res judicata.

 

Res Judicata

Pondview Corp. v Blatt, 2012 NY Slip Op 03618 (2nd Dept., 2012)

Here, the claims asserted by the plaintiffs arose out of the same transaction or series of transactions as those raised in a prior action commenced by the plaintiffs in 2003 (hereinafter the 2003 action). Moreover, all of the claims asserted here either were raised or could have been raised in the 2003 action. Accordingly, notwithstanding the fact that some relief sought in this action is different from that sought in the 2003 action, the Supreme Court properly granted those branches of the defendants' separate motions which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211(a)(5), based on the doctrine of res judicata.

Rj and CJ and JE and EE

DirecTV Latin Am., LLC v Pratola, 2012 NY Slip Op 03098 (1st Dept., 2012)

The issue whether New York courts have personal jurisdiction over defendants Pratola and Clemente pursuant to CPLR 301 and 302 was determined in the prior federal action and, pursuant to the doctrine of collateral estoppel, may not be relitigated (see Keeler v West Mtn. Corp., 105 AD2d 953, 955 [1984]). Although plaintiff Latin American Sports, LLC was not a party to the federal action, it may be collaterally estopped because it is a
limited liability company wholly owned by DirecTV, and its interests with respect to the claims against defendants are identical to those of DirecTV (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

No determination was made in the federal action as to personal jurisdiction over defendant Zunda, allegedly a citizen of the United States with a domicile in Argentina, who, until his termination, was employed as a senior officer at DirecTV Argentina, a subsidiary of DirecTV. Plaintiffs' sole allegation in support of their position is that defendants deposited funds into a New York bank account owned by Clemente, from which they funneled money to Pratola and Zunda. This is insufficient to invoke personal jurisdiction over Zunda pursuant to CPLR 302(a)(l), which authorizes exercise of personal jurisdiction over a non-domiciliary who "transacts any business within the state" (see Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 96 [2010]).

Gonzalez v City of New York, 2012 NY Slip Op 02791 (1st Dept., 2012)

Contrary to plaintiff's argument, the City is not equitably estopped from claiming that it is not a proper party. In its answer, the City specifically denied plaintiff's allegations that it controlled, maintained, or managed the school premises, or had any duty to remove snow and ice from the grounds (see Flores v City of New York, 62 AD3d 506 [2009]). That denial should have alerted plaintiff that she had sued the wrong party, and, when the City served the answer, plaintiff had adequate time to seek leave to file a late notice of claim naming the correct defendant.

The circumstances of this case can be readily distinguished from those of Padilla v Department of Educ. of the City of N.Y. (90 AD3d 458 [2011]), which concerned another injury on the grounds of a City public school. In Padilla, we held that the doctrine of equitable estoppel barred the City from denying that it was a proper party because its answer did not alert the plaintiff that it lacked control over the school premises, but instead merely objected that the attempted service of the notice of claim was improper (90 AD3d at 458). We also found that, [*2]after the notice of claim was filed, the City's wrongful or negligent actions discouraged the plaintiff from serving a timely amended notice of claim (id. at 459).

Truong v Litman, 2012 NY Slip Op 02172 (1st Dept., 2012)

Dismissal of this action was proper as it is barred by the doctrine of res judicata (see generally O'Brien v City of Syracuse, 54 NY2d 353 [1981]). The transactions upon which this action is premised were the subject of prior claims brought by and concluded against plaintiffs in both state and federal court (see id. at 357; Elias v Rothschild, 29 AD3d 448 [2006]). Contrary to plaintiffs' argument, the claims alleging violations of plaintiffs' civil rights under 42 USC § 1983 and § 1985 were decided against plaintiffs on the merits and the breach of contract claim was fully litigated and decided against plaintiffs in Civil Court, New York County.

Pierre v Mary Manning Walsh Nursing Home Co., Inc., 2012 NY Slip Op 02060 (1st Dept., 2012)

Defendants' federal preemption claim is unavailing, as the Labor Management Relations Act (29 USCS § 185) has preclusive effect only when resolution of a state law claim is substantially dependent upon the analysis of a CBA (Allis-Chalmers Corp. v Lueck, 471 US 202, 220 [1985]). Here, as explained, the CBA relied upon by defendants when seeking to compel arbitration is not applicable to plaintiffs. Contrary to defendants' urging, plaintiffs' subsequent action to compel arbitration, which was unsuccessful, does not compel invocation of the doctrine of judicial estoppel, as they have not "secured a judgment in [their] favor" by assuming "a certain position in a prior legal proceeding," and then assumed "a contrary position in another action simply because [their] interests have changed" (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]).

Zurich Am. Ins. Co. v Illinois Natl. Ins. Co., 2012 NY Slip Op 02065 (1st, 2012)

Plaintiffs' argument that Illinois National is equitably estopped to deny coverage to Moretrench is unsupported by the record (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [2005]). The documentary evidence does not establish that Illinois National (through its agents) ever conceded that Moretrench was covered during the relevant period (2006). Nor could Moretrench have relied on any such concession years after the underlying complaint was filed and Illinois National disclaimed coverage. Moreover, Moretrench cannot invoke equitable estoppel against Illinois National on the basis of promises made by defendant [*2]Urban Foundation Engineering, LLC (the contractor that subcontracted with Moretrench).

Anderson v New York City Dept. of Educ., 2012 NY Slip Op 02056 (1st Dept., 2012)

The complaint was properly dismissed as barred by the doctrine of res judicata. Plaintiff's action arose out of the same set of circumstances as his prior article 78 proceeding, which was dismissed. "[O]nce 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 Daved Fire Sys. Inc. v New York City Health & Hosps. Corp., 46 AD3d 364 [2007]).

Gomez v Brill Sec., Inc., 2012 NY Slip Op 01877 (1st Dept., 2012)

Hough v USAA Cas. Ins. Co., 2012 NY Slip Op 01549 (1st Dept., 2012)

Defendant's disclaimer of its duty to defend its insured in the underlying action does not bar it from asserting that its insured injured plaintiff intentionally, because that assertion is not a defense extending to the merits of plaintiff's personal injury claims against the insured (see Robbins v Michigan Millers Mut. Ins. Co., 236 AD2d 769, 771 [1997]). Since the underlying action culminated in a default judgment and the issue whether the insured's acts were intentional or negligent was not litigated, defendant is not collaterally estopped to assert in this action that its insured caused plaintiff's injuries intentionally (see id.). There is support for this assertion in the record (compare Rucaj v Progressive Ins. Co., 19 AD3d 270, 273 [2005] [insurer's defenses rejected as a matter of law]).

Since issues of fact exist whether the underlying incident was an "occurrence" within the meaning of the policy, i.e., an accident, or an intentional act outside the scope of coverage, which would render a disclaimer pursuant to Insurance Law § 3420(d) unnecessary, it cannot yet be determined whether defendant's noncompliance with the statute precludes it from disclaiming coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189 [2000]; Seneca Ins. Co. v Naprawa, 294 AD2d 183 [2002]).

3211(a)(5): Judgment on consent

CPLR R. 3211 Motion to dismiss

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Vitarelle v Vitarelle, 2011 NY Slip Op 08351 (2nd Dept., 2011)

"Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof. The rule applies not only to claims litigated but also to claims that could have been raised in the prior litigation" (Matter of City of New York v Schmitt, 50 AD3d 1032, 1033 [citations omitted]; see Osborne v Rossrock Fund II, L.P., 82 AD3d 727, 727-728; Shelley v Silvestre, 66 AD3d 992, 993).

In a prior action, the plaintiff consented to the entry of a judgment in favor of the defendant Richard Vitarelle, Jr., and against him on his counterclaim for possession of the subject property (see Vitarelle v Vitarelle, 65 AD3d 1035). "[A] judgment on consent is conclusive and has the same preclusive effect as a judgment after trial" (Silverman v Leucadia, Inc., 156 AD2d 442, 443; see Prudential Lines v Firemen's Ins. Co. of Newark, N.J., 91 AD2d 1, 3). The claims asserted in the instant complaint were raised or could have been raised in the prior action, which was disposed of on the merits. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata (see Cypress Hills Cemetery v City of New York, 67 AD3d 853, 854; Shelley v Silvestre, 66 AD3d at 993).

Sumry Judments with a little RJ and JE, all in the 1st Department. One bit of EE in the 2nd.

CPLR R. 3212

Lance Intl., Inc. v First Natl. City Bank, 2011 NY Slip Op 05982 (1^st Dept., 2011) 

Contrary to defendant's contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiff's contention, Civil Court did not raise the issue of lack of capacity sua sponte.

While a defense that a party lacks capacity to sue (see CPLR 3211[a][3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211[e]), plaintiff's lack of capacity did not arise until after joinder of issue, and therefore, defendant did not waive that defense (see George Strokes Elec. & Plumbing v Dye, 240 AD2d 919, 920 [1997]).

A defendant may move for summary judgment based on an unpleaded defense (see e.g. Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]). Plaintiff can hardly claim prejudice or surprise from defendant's assertion that it lacked capacity to sue. In 1995, it moved to substitute its president as the plaintiff, arguing that he was "the real party in interest by virtue of the dissolution of the corporation."

Defendant's underlying motion for summary judgment was timely (see CPLR 3212[a]). Plaintiff has supplied no proof in the record that Civil Court required defendant to file its summary judgment motion by July 21, 2008. Even if, arguendo, one judge of the Civil Court ordered defendant to file its motion by July 21, 2008, this order was superseded by the parties' October 16, 2008 stipulation, which set a briefing schedule for the motion and was so-ordered by another judge of the Civil Court.

Plaintiff's original note of issue, which was filed on October 19, 2007, "was, in effect, nullifed" (Negron v Helmsley Spear, Inc., 280 AD2d 305 [2001]) when the action was removed from the trial calendar. Therefore, the operative note of issue is the one filed on April 25, 2008 (see Williams v Peralta, 37 AD3d 712, 713 [2007]), and the motion was timely.

Montolio v Negev LLC, 2011 NY Slip Op 05985 (1^st Dept., 2011)

Furthermore, although Negev's answer is contained in the record, it is verified only by counsel. The motion also is supported only by counsel's affirmation; no submission was made by anyone with personal knowledge (Lopez v Crotona Ave. Assoc., LP, 39 AD3d 388, 390 [2007]).

 

RJ and JD

 

UBS Sec. LLC v Highland Capital Mgt., L.P., 2011 NY Slip Op 05979 (1^st Dept., 2011)

The parties appealed, presenting us with the question whether and to what extent the doctrine of res judicata applies to these circumstances. The doctrine dictates that, "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Inv. Corp. v Lopez, 46 NY2d 48l, 485 [1979]). It used to be the rule that, even if the two actions arose out of an identical course of dealing, the second was not barred by res judicata if "the requisite elements of proof and hence the evidence necessary to sustain recovery var[ied] materially" (Smith v Kirkpatrick, 305 NY 66, 72 [1953]). However, the Court of Appeals expressly rejected that method of analysis in O'Brien v City of Syracuse (54 NY2d 353 [1981]). There it held that "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" (54 NY2d at 357). The Court further stated: 

"[w]hen alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single factual grouping' (Restatement, Judgments 2d, § 61 [Tent Draft No. 5]), the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions" (id. at 357-358).

Notably, regarding this point, the Court stated in a footnote that, insofar as Smith (305 NY at 66) "may be to the contrary, it is overruled" (id.). Whether facts are deemed to constitute a single factual grouping for res judicata purposes "depends on how the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981] [internal quotation marks and citations omitted]).

Here, to the extent the claims against Highland in the new complaint implicate events alleged to have taken place before the filing of the original complaint, res judicata applies. That is because UBS's claims against Highland in the original action and in this action all arise out of the restructured warehousing transaction. While the claim against Highland in the original action was based on Highland's alleged obligation to indemnify UBS for actions taken by the affiliated funds, and the claims against Highland in the second action arose out of Highland's alleged manipulation of those funds, they form a single factual grouping. Both are related to the same business deal and to the diminution in the value of the securities placed with UBS as a result of that deal. Thus, the claims form a convenient trial unit. Moreover, it can hardly be said that the claims in the two actions are so unrelated that reasonable business people, not to mention the parties themselves, would have expected them to be tried separately (see Smith, 54 NY2d at 192-193). Also, we note that, when seeking permission to amend the complaint, UBS itself asserted that "the new causes of action arise out of the same or related circumstances and events as UBS's pending claims."

Further, the Court of Appeals' holding in Xiao Yang Chen v Fischer (6 NY3d 94 [2005]) [*6]does not support UBS's position. Nor does it represent a shift in res judicata jurisprudence, as UBS argues. The circumstances of this case bear no resemblance to those in Xiao Yang Chen, which involved a woman who, in a previously filed separate action, was granted a divorce on the ground of cruel and inhuman treatment. In the divorce action, the plaintiff supported her cruel and inhuman treatment claim with an allegation that her husband had slapped her, causing injury. While the divorce action was pending, the plaintiff commenced a separate personal injury action seeking damages for the intentional infliction of emotional distress and injuries arising out of the alleged assault. In finding that res judicata did not bar the personal injury action, the Court of Appeals noted that the two actions sought different types of relief and did not constitute a convenient trial unit. The Court of Appeals also noted other significant distinctions, such as the facts that divorce actions are typically decided by a judge and that attorneys in personal injury actions may be compensated by a contingency fee, and the policy consideration of expediting divorce proceedings. None of those considerations applies here, where the action seeks money damages arising only in connection with a commercial transaction. 

While we have concluded that res judicata bars the claims in this action, we still must address UBS's assertion that it would be fundamentally unfair to apply res judicata under the circumstances of this case. UBS bases this argument primarily on the contention that it would have moved to amend the complaint in the original action while that action was still in existence (i.e., before this Court dismissed it), but for the necessity that it comply with the Commercial Part rules requiring that it first seek permission in a letter. However, this argument fails because, even had they made such a motion, the ultimate result would have been the same. As evidenced by the affidavit of its former employee, UBS was aware of the facts that support the claims in this action as long ago as November 2008. That was before UBS filed the original action.

Indeed, the evidence that the former employee admits had been gathered by UBS at that time supports all the claims asserted against Highland in this action. That UBS received additional evidence in the document production that Highland made shortly before UBS sought to amend its complaint is irrelevant. The proper inquiry for res judicata purposes is when UBS could have raised a cause of action, not when it had enough evidence to prove the claim at trial (see Castellano v City of New York, 251 AD2d 194, 195 [1998], lv denied 92 NY2d 817 [1998], cert denied 526 US 1131 [1999]). In this regard, we note that, based on what it admits it knew in November 2008, UBS could have pleaded its fraud claim with the requisite particularity at that time, since the facts available would have permitted a "reasonable inference of the alleged conduct" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). Because UBS could have asserted the instant claims in the original complaint or moved to amend well before that complaint was dismissed by this Court, we are not persuaded that the Rules of the Commercial Part affected the eventual result. Nevertheless, to the extent that the third and fourth causes of action, alleging breach of the covenant of good faith and fair dealing and fraudulent conveyance, respectively, rely on conduct alleged to have occurred after the commencement of the prior action, such claims should be allowed.

Nor do we share the motion court's concern that it is unfair to apply res judicata where Highland remains a party to the action by dint of its counterclaims. It would likewise be unjust to hold that a defendant that chooses to assert a counterclaim forfeits its right to assert the defense of res judicata with respect to the main claims. Indeed, to so hold would deal a blow to judicial economy since counterclaims are not compulsory in New York (67-25 Dartmouth St. Corp. v Syllman, 29 AD3d 888, 889 [2006]), and defendants would merely assert their own [*7]claims in separate actions to avoid the application of res judicata.

Kvest LLC v Cohen, 2011 NY Slip Op 05984 (1^st Dept., 2011)

Plaintiff is not barred by the doctrine of judicial estoppel from asserting that the disclaimer is valid because it did not prevail in the declaratory judgment action (see Rothstein & Hoffman Elec. Serv., Inc. v Gong Park Realty Corp., 37 AD3d 206, 207 [2007], lv denied 8 NY3d 812 [2007]; Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]). However, contrary to plaintiff's argument, the doctrine of collateral estoppel does not bind defendants to the declaratory judgment court's determination that defendants did not timely notify the carrier of the claim letter. Defendants were not parties to that action. The doctrine of collateral estoppel is binding only upon parties or their privies who have had a full and fair opportunity to litigate issues determined in prior proceedings (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-486 [1979]).

Defendants state in their affidavit that they mailed a copy of the claim letter to the carrier [*2]on May 6, 2004, two days after they received it from plaintiff. However, a notice of occurrence/claim form prepared by defendants on October 2, 2004 indicates that the claim had not previously been reported. This raises a triable issue of fact as to whether defendants timely notified the carrier of the claim letter. 

Contrary to defendants' assertion, the damages recoverable in this action can include plaintiff's reasonable attorneys' fees incurred in defending the carrier's declaratory judgment action in its effort to mitigate its damages (see Martini v Lafayette Studio Corp., 273 AD2d 112, 114 [2000]). On the other hand, the breach of fiduciary duty cause of action was properly dismissed as the facts establish that the parties had nothing more than a typical insurance broker-customer relationship (see e.g. Murphy v Kuhn, 90 NY2d 266, 270-271 [1997]).

Equitable estoppel

Giannetto v Knee, 82 AD3d 1043 (2^nd Dept. 2011)

The Supreme Court erred, however, in granting that branch of the defendants' motion which was for summary judgment dismissing the malpractice cause of action against Knee on the basis of the statute of limitations. Although the defendants established, prima facie, that the action was commenced well beyond the 2½-year statute of limitations applicable to claims alleging dental malpractice (see CPLR 214-a), the plaintiff raised a triable issue of fact as to whether Knee should be equitably estopped from raising the defense of the statute of limitations. "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; see Simcuski v Saeli, 44 NY2d at 448-449). Whether equitable estoppel applies is generally a question of fact (see Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 755 [2005]), and a mere failure to disclose malpractice or diagnose a condition does not give rise to equitable estoppel (see Rizk v Cohen, 73 NY2d 98 [1989]; Simcuski v Saeli, 44 NY2d at 450; Reichenbaum v Cilmi, 64 AD3d 693, 695 [2009]; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 614 [2008]; Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]; Coopersmith v Gold, 172 AD2d 982, 983 [1991]). Here, the plaintiff's sworn allegations raised a triable issue of fact as to whether Knee concealed his malpractice by knowingly misrepresenting her condition and by bonding tooth number 21, a procedure that the plaintiff alleges he knew was not effective (see Vigliotti v North Shore Univ. Hosp., 24 AD3d at 755; Szajna v Rand, 131 AD2d 840, 841 [1987]). Additionally, the plaintiff raised a triable issue of fact as to whether she commenced the action within a reasonable time after her discovery of the alleged malpractice (see Edmonds v Getchonis, 150 AD2d 879, 882 [1989]).

 

RJ and CE and EE

Breslin Realty Dev. Corp. v Shaw, 2010 NY Slip Op 00087 (App. Div., 2nd, 2010)

II. Res Judicata and Collateral Estoppel

Under the doctrine of res judicata, a final judgment precludes reconsideration of all claims which could have or should have been litigated in the prior proceedings against the same party (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Ryan v New York Tel. Co., 62 NY2d 494, 501-502). Once the party seeking the benefit of collateral estoppel establishes that the identical issue was "material" (emphasis supplied) to a prior judicial or quasi-judicial determination, the party to be estopped bears the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding (id.). Contrary to the determination of the Supreme Court, the proponent of the doctrine of collateral estoppel need not demonstrate that the particular theory in support of a cause of action was actually raised and litigated in the prior action or proceeding (see Matter of Schulz v New York State Legislature, 278 AD2d 710, 711; Williams v Steinberg, 211 AD2d 597; Lanzano v City of New York, 202 AD2d 378, 379; Sokol v Sokol, 113 F3d 303, 306).

Where the prior adjudication involved the same parties and the same cause of action, res judicata applies. "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the parties on the same cause of action . . . As a general rule, 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'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347, quoting O'Brien v City of Syracuse, 54 NY2d 353, 357; see Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d 32).

Union St. Tower, LLC v Richmond, 2011 NY Slip Op 03834 (App. Div., 2nd 2011)

The doctrine of res judicata " operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'" (Luscher v Arrua, 21 AD3d 1005, 1006-1007, quoting Koether v Generalow, 213 AD2d 379, 380). To determine what "factual grouping" constitutes a "transaction," the court must consider how " the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage'" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193, quoting Restatement, Judgments 2d [Tent Draft No. 1], § 61; see Braunstein v Braunstein, 114 AD2d 46, 53). Under New York's transactional approach to 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).

The first and second counterclaims in this action are barred by res judicata because those claims could have been resolved in the March 2004 action (see Jennings v City of Glens Falls Indus. Dev. Agency, 9 AD3d 773, 774). These counterclaims, when compared with the causes of action in the March 2004 action "are related in time, space, origin, [and] motivation" (Smith v Russell Sage Coll., 54 NY2d at 192-193). They (1) originate from the identical agreement, (2) span the same period of time, (3) involve the same chief participants, and (4) involve the same motivation of Richmond to reclaim an ownership interest in Lot 4. "Under these circumstances, it is almost impossible to resist the conclusion that the over-all transaction here formed a convenient trial unit and that this view conforms to reasonable expectations" (Smith v Russell Sage Coll., 54 NY2d at 193 [internal quotation marks omitted]).

Vitello v Amboy Bus Co., 83 AD3d 932 (App. Div., 2nd 2011)

Under the doctrine of collateral estoppel, a party is precluded from "relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Two elements must be established: (1) that "the identical issue was necessarily decided in the prior action and is decisive in the present action"; and (2) that the precluded party "must have had a full and fair opportunity to contest the prior determination" (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Collateral estoppel is applicable to quasi-judicial determinations of administrative agencies, including the WCB (see Ryan v New York Tel. Co., 62 NY2d at 499; O'Gorman v Journal News Westchester, 2 AD3d 815, 816 [2003]; Rigopolous v American Museum of Natural History, 297 AD2d 728, 729 [2002]).

Here, the Decision of the WCB does not collaterally estop the defendant from arguing that it was the plaintiff's employer, because there is no indication in the record that this was a disputed issue at the workers' compensation proceeding or that the WCB specifically adjudicated this issue (see Weitz v Anzek Constr. Corp., 65 AD3d 678, 679 [2009]; Caiola v Allcity Ins. Co., 257 AD2d 586, 587 [1999]). Therefore, the Supreme Court improperly concluded that the defendant was collaterally estopped from arguing that it was the plaintiff's employer.

John Hollings, Inc. v Nick & Duke, LLC, 83 AD3d 444 (App. Div., 1st 2011)

The issue whether plaintiff was wrongfully deprived of its use of the subject premises was fully and fairly litigated, and necessarily decided, in the prior Civil Court proceeding (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Plaintiff's eviction was based on uncured lease violations alone and had no connection to the wrongs it alleges against defendants in this action.

We find that plaintiff's conduct in commencing this action was frivolous within the meaning of 22 NYCRR 130-1.1.

Town of Huntington v Beechwood Carmen Bldg. Corp., 82 AD3d 1203 (App. Div., 2nd 2011)

"Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821 [2006]; see Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893 [2010]). "A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata" (Liberty Assoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Greenstone/Fontana Corp. v Feldstein, 72 AD3d at 893). Here, the Town's current claims against SBJ were either raised or could have been raised in the previous action which was discontinued with prejudice against SBJ and, thus, the Town is precluded under principles of res judicata from litigating claims against SBJ arising from the same transaction. Accordingly, the complaint was properly dismissed insofar as asserted against SBJ.

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. DIv., 1st 2011)

To be sure, "collateral estoppel will bar the subsequent independent action . . . if . . . the moving party was in fact given a hearing on the motion that was the equivalent of a trial with oral testimony" (id. at 668, 123 Cal Rptr 2d at 170-171 [emphasis added]). However, plaintiff was not given such a hearing. It was given the opportunity for a hearing, but it chose not to exercise that opportunity.

Defendants' reliance on Barker v Hull (191 Cal App 3d 221, 226, 236 Cal Rptr 285, 289 [1987]) is unavailing, since the evidence on the motion which led to the decision to which defendants seek to give preclusive effect was indeed restricted.

Dier v Suffolk County Water Auth., 2011 NY Slip Op 03993 (App. Div., 2nd 2011)

The Supreme Court erred in concluding that the appellant is estopped from asserting a defense based on the plaintiff's failure to serve a timely notice of claim. Equitable estoppel against a public corporation will lie only when the conduct of the public corporation was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim, and when that conduct was justifiably relied upon by that party (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Dorce v United Rentals N. Am., Inc., 78 AD3d 1110, 1111; Vandermast v New York City Tr. Auth., 71 AD3d 1127; Mohl v Town of Riverhead, 62 AD3d 969; Wade v New York City Health & Hosps. Corp., 16 AD3d 677). Here, the plaintiff failed to demonstrate that the appellant engaged in any misleading conduct that would support a finding of equitable estoppel (see Dorce v United Rentals N. Am., Inc., 78 AD3d at 1111; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Walter H. Poppe Gen. Contr. v Town of Ramapo, 280 AD2d 667, 668; Cappadonna v New York City Tr. Auth., 187 AD2d 691, 692; Nicholas v City of New York, 130 AD2d 470). The fact that the appellant conducted an examination pursuant to General Municipal Law § 50-h prior to making its motion to dismiss does not justify a finding of estoppel (see Hochberg v City of New York, 63 NY2d 665; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Rodriguez v City of New York, 169 AD2d 532, 533; Ceely v New York City Health & Hosps. Corp., 162 AD2d 492). Accordingly, the appellant's motion, in effect, to dismiss the complaint insofar as asserted against it for the plaintiff's failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e(5) should have been granted.

Standing and Res Judicata

Springwell Nav. Corp. v Sanluis Corporacion, S.A., 2011 NY Slip Op 01353 (App. Div., 1st 2011)

Since this Court's dismissal of the prior action for lack of standing (46 AD3d 377 [2007]) was not a final determination on the merits for res judicata purposes, plaintiff is not precluded from reasserting the same claims based on newly conferred rights that cured the lack of standing (see e.g. Pullman Group v Prudential Ins. Co. of Am., 297 AD2d 578 [2002], lv dismissed 99 NY2d 610 [2003]). Nor, for collateral estoppel purposes, is the issue raised in this action identical to the issue "necessarily decided" in the prior appeal (see Matter of Hofmann, 287 AD2d 119, 123 [2001]). The issue decided against plaintiff in the prior appeal was whether plaintiff had standing as a beneficial owner to sue on either the indenture or the note. The issue now before us is whether plaintiff has standing, as the registered holder's authorized appointee, to bring suit on the indenture.

As the indenture expressly permits the registered holder to assign its right to institute any legal action to an appointed proxy, and plaintiff has obtained the registered holder's authorization to sue in its stead, plaintiff's status has changed, and its prior lack of capacity has been cured (see [*2]e.g. Allan Applestein Trustee F/B/O D.C.A. Grantor Trust v Province of Buenos Aires, 415 F3d 242 [2d Cir 2005]).

 

Res Judicata

Zito v Fischbein Badillo Wagner Harding, 2011 NY Slip Op 00285 (App. Div., 1st 2011)

Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]).

The fifth cause of action, alleging a violation of Judiciary Law § 487, is also barred by res judicata since it is predicated upon the same conduct as underlies the legal malpractice claim, namely, defendant's "prior representation of" plaintiff (see Izko Sportswear Co., Inc. v Flaum, 63 AD3d 687, 688 [2009], lv denied 
13 NY3d 708 [2009]; Jericho Group Ltd. v Midtown Dev., L.P., 67 AD3d 431, 432 [2009], lv denied 14 NY3d 712 [2010]).

 

CPLR R. 3211(a)(7) and Res Judicata

Pereira v St. Joseph's Cemetery, 2010 NY Slip Op 08917 (App. Div., 2nd 2010)

"Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727; see Asgahar v Tringali Realty, Inc., 18 AD3d 408; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). As a general rule, a [*2]dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615; Asgahar v Tringali Realty, Inc., 18 AD3d at 408; see also Sullivan v Nimmagadda, 63 AD3d 908, 909). Here, our prior dismissal was not on the merits and, consequently, the doctrine of res judicata was not a bar to the plaintiff's second action.

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps.
Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.