Conanan v Oliveri

[*1] Conanan v Oliveri 2006 NY Slip Op 50988(U) [12 Misc 3d 1161(A)] Decided on May 26, 2006 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2006
Supreme Court, Richmond County

Adam S. Conanan and JEAN CONANAN, Plaintiff(s),

against

Rosemary D. Oliveri, a/k/a ROSEMARY DAVERSA-OLIVERI, Defendant(s).



103518/05

Robert Gigante, J.

Upon the foregoing papers, the defendant's motion for dismissal of the complaint pursuant to CPLR 3211(a)(5) is granted.

Plaintiffs commenced this action to recover damages allegedly sustained by them when they discovered extensive termite damage in the home which they had purchased from defendants. According to plaintiffs, defendant knew of the vast termite infestation and resulting damage, yet actively concealed the condition in order to prevent plaintiffs from discovering same prior to closing.

It is undisputed that an earlier action for fraud was commenced by plaintiffs (under Index No. [*2]10284/03) to recover damages resulting from the same infestation and arising out of the same transaction. Said action was dismissed by this Court on September 13, 2005, on the ground that plaintiffs had failed to show that they relied upon any representation made by defendant in the pre-closing Property Condition Disclosure Statement provided to them in April 2002. Plaintiffs thereafter commenced this second action alleging that defendant deliberately and actively concealed the extensive termite infestation and damage by hiring a pest control company and a contractor to treat and repair only certain areas, while excluding other possible sites of infestation and damage. According to plaintiffs, these deliberate acts prevented plaintiffs from discovering the condition prior to closing.

In moving to dismiss this action, defendant contends that plaintiffs are barred by the doctrine of res judicata from commencing another action based on the same set of facts. According to defendant, the facts alleged and the relief sought in both the first and second actions are the same and, thus, any matters that were actually put in issue in the prior action or could have been put in issue are now barred. Defendant also contends that the active concealment claim was pleaded in the first action, and that plaintiffs' own engineer provided them with notice of prior termite infestation in his inspection report, but that they failed to make further inquiry.

In opposition, plaintiffs contend that the current action is based on allegations of actual knowledge and deliberate concealment, while the prior action was founded solely on allegations of fraudulent misrepresentations within the Real Property Disclosure Statement. That action was dismissed, according to plaintiffs, because they failed to establish reliance on defendant's misrepresentations prior to the closing of title. Plaintiffs further contend that the present allegations of active concealment were neither addressed or litigated in the prior action. Since the issues are different, plaintiffs maintain that the "measure of identity" required by the doctrine of res judicata is lacking. Plaintiffs further maintain that dismissal of the present action would deprive them of a substantial right. Finally, although the claim for active concealment may be based upon the same congeries of facts, plaintiffs argue that since it proceeds upon a different legal theory, a different outcome in the present action will neither destroy nor impair rights or interests adjudicated in the prior action.

The action is dismissed.

Res judicata is a legal doctrine that is expressive of the policy that a matter, once decided, is not to be relitigated. As applicable, it requires an identity of parties, a common "cause of action" and a final determination in the earlier proceeding. Typically, the doctrine requires 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" (O'Brien v. City of Syracuse, 54 NY2d 353, 357). "When 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, the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions" (O'Brien v. City of Syracuse, 54 NY2d at 357-358 [citations and internal quotation marks omitted]).

Here, it is the opinion of this Court that plaintiffs' claim of "active concealment" as asserted in the present action could have been raised in the prior proceeding and is barred by res judicata. The parties in both actions are clearly the same, as is the nature of relief sought, i.e., money damages for the extensive repairs necessitated by the hidden termite infestation. Moreover, both actions are [*3]based on defendant's concealment of the extant termite infestation, however practiced.

While the Court is not unsympathetic to plaintiffs' situation, it is constrained to follow the principles of claim preclusion espoused long ago by the United States Supreme Court in Stark v. Starr (94 US 477, 485), "a party seeking to enforce a claim, legal or equitable, must present to the court, either by pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible". The fact that plaintiffs may have errantly omitted allegations of active concealment in the prior action "will not justify presenting the claim by two different actions" (O'Brien v. City of New York, 54 NY2d at 358).

In regard to that portion of defendant's motion which is for counsel fees, costs and sanctions, while a court is empowered to impose same upon a party or attorney who engages in "frivolous conduct" (22 NYCRR §130-1.1), plaintiffs' conduct in commencing the second action, does not, in the opinion of the Court, rise to that level.

Accordingly, it is

ORDERED that defendant's motion to dismiss the complaint is granted except for the request for counsel fees, costs and sanctions, which is denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

s/

Dated: May 26, 2006Robert J. Gigante, J.S.C.

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