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.
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.

Oral Decision, Not Reduced to Writing, Does Not Get Res Judicata Effect (last case)

Res Judicata
Collateral Estoppel
Law of the Case

Specialized Indus. Servs. Corp. v Carter, 2009 NY Slip Op 09018 (App. Div., 2nd, 2009)

In the underlying action, judgment was entered against the plaintiff upon its default in answering or appearing. The plaintiff obtained an order vacating the default judgment, which was ultimately reversed by this Court (see Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790). Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427; Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 87; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215). Under an exception to that rule, a separate lawsuit may be brought where the [*2]alleged perjury or fraud in the underlying action was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) which was "greater in scope than the issues determined in the prior proceeding" (Retina Assoc. of Long Is. v Rosberger, 299 AD2d at 533 [internal quotation marks omitted]). The plaintiff here, in its amended verified complaint and supplemental affidavits, has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d at 80, 87-88; cf. North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d at 428).

Contrary to the defendant's contention, the first cause of action in the amended verified complaint is not barred by the doctrine of res judicata since the Judiciary Law cause of action did not arise out of the factual transaction which was the subject matter of that action (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Mahler v Campagna, 60 AD3d at 1011; Lazides v P & G Enters., 58 AD3d 607, 609; Triboro Fastener & Chem. Prods. Corp. v Lee, 236 AD2d 603, 603-604). Nor is the first cause of action precluded by principles of collateral estoppel in that the claim was not litigated in the underlying action and much of the evidence upon which the plaintiff relies was discovered subsequent to entry of the default judgment in the underlying action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Izko Sportswear Co., Inc. v Flaum, 25 AD3d at 537; Chambers v City of New York, 309 AD2d 81, 85).

Man Choi Chiu v Chiu, 2009 NY Slip Op 08792, (App. Div., 2nd, 2009)

On a prior appeal in this action, this Court affirmed, inter alia, the Supreme Court's determination to award an attorney's fee to the plaintiffs (see Man Choi Chiu v Chiu, 38 AD3d 619). Thus, the doctrine of the law of the case (see People v Evans, 94 NY2d 499, 502) precludes consideration of whether the plaintiffs were properly awarded an attorney's fee (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314, affd 10 NY3d 846; Toyos v City of New York, 54 AD3d 628; Combier v Anderson, 34 AD3d 333).

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the defendants appealed from an order of the Supreme Court dated September 7, 2007, which, inter alia, denied their motion to cancel the hearing on the issue of the amount of attorney's fees to be awarded. That appeal was dismissed by decision and order on motion of this Court dated June 18, 2008, for failure to prosecute. We decline to exercise our discretion to determine the merits of that appeal on the instant appeal from the judgment, as amended (see Bray v Cox, 38 NY2d [*2]350; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936, 937).

Jespersen v Li Sheng Liang, 2009 NY Slip Op 09000 (App. Div., 2nd, 2009)

As a general rule, a dismissal "with prejudice" signifies that the court intended dismiss the action "on the merits" (Yonkers Contr. v Port Auth. Trans Hudson Corp., 93 NY2d 375, 380). However, an oral decision which has never been reduced to a written order or judgment is not entitled to res judicata effect and thus is ineffective as a bar to subsequent proceedings (see Towne v Asadourian, 277 AD2d 800; Begelman v Begelman, 170 AD2d 562; see also 73 NY Jur 2d, Judgments §§ 354, 436, 437). Moreover, it is clear from the hearing transcript, as well as from the order appealed from, that the Supreme Court did not intend its dismissal of the first action to be on the merits. In addition, while a "duplicate" action is subject to dismissal pursuant to CPLR 3211(a)(4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

The bold is mine.

No New Arguments in the Reply, and Res Judicata

Djoganopoulos v Polkes, 2009 NY Slip Op 08173 (App. Div., 2nd, 2009)

Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). The complaint in the prior related action was dismissed on the ground that it did "not contain any factual averments against" Jonathan D. Polkes, Ellen G. Polkes, and Megan Strecker. "Rather, the conduct complained of involves only the Village [of Westhampton Dunes and its officials]" (Feder v Polkes,AD3d [decided herewith]). Therefore, the dismissal was not on the merits, and the doctrine of res judicata does not apply in the instant case (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614).

We do not consider the defendants' contention that the plaintiffs failed to join necessary parties since it was improperly raised for the first time in their reply papers before the Supreme Court (see Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825; Luft v Luft, 52 AD3d 479, 480; Medugno v City of Glen Cove, 279 AD2d 510, 511-512).

Hantz v Hillman Hous. Corp., 2009 NY Slip Op 07933 (App. Div., 1st, 2009)

The tenant's second action seeking to compel the Board to grant his request to install an in-wall air conditioning system arose out of the same transaction, and facts, as had been considered in the tenant's prior litigation on the issue. The nature of tenant's proposed air conditioning installation and reasons for its need (i.e., medical, aesthetics, etc.) remained unchanged from the facts available at the time of the Board's original July 2005 determination, as well as at the time of the aforementioned prior litigation. Whether a mistaken factual assumption by the Board in considering Hantz's first application led to an errant determination may not be revisited based upon re-submission of the same facts, pertaining to the same transaction, as had been originally considered by the Board (see e.g. Mchawi v State Univ. of N.Y., Empire State Coll., 248 AD2d 111, 112 [1998], lv denied 92 NY2d 804 [1998]). The applicable statute of limitations period for challenging the Board's 2005 determination having since expired, Hantz's alleged new claim based on the same facts as those previously considered was properly dismissed on res judicata grounds (see e.g. Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 4-5 [2000]).

Jericho Group Ltd. v Midtown Dev., L.P., 2009 NY Slip Op 07946 (App. Div., 1st, 2009)

The two actions are based on the same transaction, namely the sale of real property, and the prior action was dismissed on the merits, and not merely because of technical pleading defects (see Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435 [2009], lv denied 12 NY3d 830 [2009]; Lampert v Ambassador Factors Corp., 266 AD2d 124 [1999]). Even though this Court, in granting defendant Midtown's motion to dismiss the complaint in the prior action, did not state that it was dismissing the action on the merits (32 AD3d 294 [2006]), an examination of our ruling clearly demonstrates that the claims were dismissed on the merits (see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1989]).

Contrary to plaintiff's contention, this Court's subsequent order denying its motion to, inter alia, vacate the judgment of dismissal (47 AD3d 463 [2008], lv dismissed 11 NY3d 801 [2008]), has preclusive effect for purposes of res judicata, especially since it resulted in the reentry of the judgment of dismissal. This Court's ruling that plaintiff "fails to show fraud in the underlying transaction" (47 AD3d at 464), was not mere dicta and acts as a bar to plaintiff's claim of willful and deliberate breach of the contract (see O'Brien v City of Syracuse, 54 NY2d 353, 357-358 [1981]). Indeed, the claims are based on the same alleged misconduct, namely, defendants' failure to provide documents on an oil spill near the subject property and information regarding the nonexistence of certain exhibits referenced in the contract of sale. With respect to plaintiff's claims that it is entitled to specific performance because it cancelled the contract as a result of defendants' alleged willful and deliberate misconduct and because its attorney did not have the authority to cancel the contract, those claims are barred under the doctrine of res judicata because they could have been raised in the prior action (see Fifty CPW Tenants Corp. v [*2]Epstein, 16 AD3d 292, 293-294 [2005]).

Because plaintiff had reviewed the documents illustrating defendants' alleged fraud prior to commencing the first action, it cannot elude issue or claim preclusion "under the rubric of fraud" (Smith v Russell Sage Coll., 54 NY2d 185, 193 [1981]).

Schloss v Jones, 2009 NY Slip Op 08207 (App. Div., 2nd, 2009)

The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior action, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior action (see Mahler v Campagna, 60 AD3d 1009, 1011; Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677). In the instant action, the plaintiff sets forth the same allegations that were or could have been resolved in a prior action. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint as barred by the doctrine of res judicata (see QFI, Inc. v Shirley, 60 AD3d 656, 657; Lefkowitz v Schulte, Roth & [*2]Zabel, 279 AD2d 457; Pappas v Cerrone, 281 AD2d 608).

The bold is mine.

Res Judicata, Collateral Estoppel, and Law of the Case

Res Judicata

Collateral Estoppel

Law of the Case

State Farm Ins. Co. v Frias, 2009 NY Slip Op 07825 (App. Div., 2nd, 2009)

State Farm argued that, because the three nondefaulting defendants
had not proposed a counter-judgment, had not opposed State Farm's
proposed judgment, had not moved for leave to renew or reargue, had not
moved to vacate the judgment, and had not appealed from the judgment,
they were estopped from challenging the declarations contained in it.
Luccme and Urena opposed State Farm's motion and, in an order entered
April 10, 2008, the Supreme Court granted the motion based on the
failure of the nondefaulting defendants to oppose the proposed
judgment. Luccme and Urena appeal from the resulting judgment. We

Inasmuch as State Farm initially moved for leave to enter a
default judgment against the defaulting defendants only, the resulting
judgment binds only those defendants, and may not be given preclusive
effect to deprive Luccme and Urena, who appeared in the action, of
their right to litigate the issues pertaining to coverage (see American Motorists Ins. Co. v North Country Motors, 57 AD2d 158, 160). Accordingly, we reverse the order insofar as appealed from.

But what about privity.

Shelley v Silvestre, 2009 NY Slip Op 07822 (App. Div., 2nd, 2009)

"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 Matter of Reilly v Reid, 45
NY2d 24, 30). The claims raised in the instant complaint were raised or
could have been raised during a prior action between the same parties,
which was disposed of on the merits. Accordingly, the plaintiffs'
complaint was properly dismissed as barred by the doctrine of res
judicata (see Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404-405; Slavin v Fischer, 160 AD2d 934, 934-935).

Lighthouse 925 Hempstead, LLC v Citibank, N.A., 2009 NY Slip Op 07597 (App. Div., 2nd, 2009)

"Res judicata serves to bar future litigation between the same
parties or those in privity with the parties of a cause of action
arising out of the same transaction or series of transactions as a
cause of action that was raised in a prior proceeding" (Winkler v Weiss, 294 AD2d 428, 429; see Matter of ADC [*2]Contr. & Constr., Inc. v Town of Southampton,
50 AD3d 1025, 1026). The fact that causes of action may be stated
separately or invoke different legal theories will not permit
relitigation of claims (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; see also Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d at 1025).

Here, both this action and the prior action arise from the same
transaction, namely the defendants' alleged failure to remove a
drive-thru ATM. The fact that Lighthouse now invokes the legal theory
of trespass instead of breach of contract, which it argued in the prior
action, will not permit it to relitigate the claim. Therefore, the
Supreme Court properly granted the defendants' motion for summary
judgment dismissing the complaint on the ground that it was barred by
res judicata.

Frankson v Brown & Williamson Tobacco Corp., 2009 NY Slip Op 06799 (App. Div., 2nd, 2009)

As a general rule, the law of the case doctrine precludes this Court
from re-examining an issue which has been raised and decided against a
party on a prior appeal where that party had a full and fair
opportunity to address the issue (see People v Evans, 94 NY2d 499, 502; Allison v Allison, 60 AD3d 711; Lipp v Port Auth. of N.Y. and N.J., 57 AD3d 953, 954; Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177,
1197). Unlike res judicata and collateral estoppel, which "are rigid
rules of limitation," the law of the case doctrine "is a judicially
crafted policy that expresses the practice of courts generally to
refuse to reopen what has been decided, [and is] not a limit to their
(People v Evans, 94 NY2d at 503, quoting Messenger v Anderson, 225 US 436, 444). Thus, while the law of the case doctrine is intended to foster "orderly convenience" (Foley v Roche, 86
AD2d 887, 887), it is not an absolute mandate which limits an appellate
court's power to reconsider issues where there are extraordinary
circumstances, "such as subsequent evidence affecting the prior
determination or a change of law"
(Lipp v Port Auth. of N.Y. and N.J., 57 AD3d at 954; see People v Evans 94 NY2d at 503; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809; Foley v Roche, 86 AD2d at 887).

Guided by these principles, we agree that the law of the case
doctrine precludes us from reconsidering the issues of whether the
trial court applied an appropriate standard for the admissibility of
scientific evidence, and whether punitive damages were properly
assessed against the Tobacco Institute and the Tobacco Council. These
issues were raised by the defendants and decided against them on the
prior appeals, and there are no new factual circumstances or change in
the law which would warrant our reconsideration
(see Pekich v James Lawrence, Inc., 38 AD3d 632, 633; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407; Wendy v Spector, 305 AD2d 403).

All the bold is mine.