Milea Leasing Corp. v Chukwuneta

[*1] Milea Leasing Corp. v Chukwuneta 2006 NY Slip Op 52191(U) [13 Misc 3d 1240(A)] Decided on October 31, 2006 Supreme Court, Bronx County Renwick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2006
Supreme Court, Bronx County

Milea Leasing Corp., John Carrasquillo and Nick Penachio Company, Inc., Plaintiffs,

against

Emeka Chukwuneta, Defendant.



6408/2005

Dianne T. Renwick, J.

Plaintiffs commenced this action seeking contribution from defendant for the judgment rendered against plaintiffs in a personal injury action stemming from a multiple car accident.Defendant Emeka Chukwuneta, who has defaulted in this action, now seeks a court order vacating his default and dismissing the action on several grounds, including collateral estoppel and the lack personal jurisdiction.

Factual and Procedural Background

In the prior action under index number 25747/2000, Herman A. Mantock, Jr., sued plaintiffs in this action, Milea Leasing Corp., John Carrasquillo and Nick Penachio Company Inc., as well as defendant Emeka Chukwuneta. In the prior action, Mantock sought to recover money damages for personal injuries sustained during an automobile accident that took place on April 11, 2002. Reportedly, plaintiff's vehicle (Car No. 1) was struck in the rear by a vehicle (Car No. 2) owned by Milea Leasing Corp, leased by Nick Penachio Company Inc. and driven by John Carrasquillo. Allegedly, prior to striking Mantock, Jr.'s car, the car driven by Carrasquillo was struck in the rear by the car driven by Emeka Chukwuneta (Car No. 3).

On December 16, 2003, the Bronx Supreme Court (Justice Bertram Katz) granted the motion by defendant Emeka Chukwuneta, seeking a dismissal of the claims and cross claims asserted against him for lack of personal jurisdiction over him. Specifically, the court found that service made on defendant Emeka Chukwuneta pursuant to CPLR §308(4) (nail and mail service) was improper since plaintiff in the prior action, Mr. Mantock, failed to establish that he had exercised due diligence in attempting to personally serve defendant prior to resorting to nail and mail service pursuant to CPLR §308(4).

On May 10, 2004, the prior personal injury action proceeded to a non-jury trial, pursuant to an agreement the parties (plaintiff and Car No. 2 defendants) entered into with the presiding Justice (Norma Ruiz). The court found, inter alia, that the negligence of defendant driver (John [*2]Carrasquillo) was the proximate cause of plaintiff's injuries, and awarded plaintiff money damages for past pain and suffering in the amount of $90,000.

Subsequently, Car No. 2 defendants, Milea Leasing Corp. John Carrasquillo and Nick Penachio Company Inc. commenced this action against Car No. 3 defendant, Emeka Chukwuneta, seeking contribution from him based upon their payment to Mantock of the $90,000 judgment. In this action, plaintiffs (formerly car No. 2 defendants ) allege that they are entitled to contribution because the car accident in question was caused wholly or in part by the negligent driving of Emeka Chukwuneta. Defendant Chukwuneta never answered the summons and complaint. A default judgment was entered against Chukwuneta on November 10, 2005, and the action was set down for an inquest for a determination and assessment of damages.

Defendant Emeka Chukwuneta, however, now moves to obviate the inquest by seeking a court order vacating his default and dismissing the action on the grounds that collateral estoppel precludes the action, plaintiff waived any contribution by failing to raise it in the prior personal injury action, and the court lacks personal jurisdiction over defendant because he was not properly served.

Discussion

This Courts finds no merits to defendant's argument that the action should be dismissed on collateral estoppel grounds. New York courts have demanded that two conditions must be met before collateral estoppel will apply to any prior determination. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and, second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. See Clement v. Apple, 65 NY2d 746 (1985); Ryan v. New York Telephone Co., 62 NY2d 494 (1984); DeWitt, Inc. v. Hall, 19 NY2d 141 (1967); Schwartz v. Public Administration, 24 NY2d 65 (1969). The party seeking the benefit of collateral estoppel has the burden of demonstrating the identicality of issues in the present litigation and the prior determination, where the party attempting to defeat its application has the burden of demonstrating the absence of a full and fair opportunity to litigate the issue in the prior action. Kaufman v. Eli Lily and Company, 65 NY2d 449, 455-456 (1985); Ryan v. New York Telephone Co., 62 NY2d 494 (1984). See also, Siegel, New York Practice, §§456-572 (2003).

Here, this Court finds that defendant has failed to meet his burden. Specifically, defendant has failed to establish the identicality and decisiveness of the issues. Because defendant Emeka Chukwuneta was dismissed from the prior action due to the court's lack of personal jurisdiction over him, the issue of his negligence was not actually litigated in the prior action. Thus, the dispositive issue of defendant's negligence was never decided in the prior action, precluding the application of collateral estoppel to the present action.

Nor has defendant established that plaintiffs waived any claim for contribution by not raising it at the prior personal injury action. What defendant conveniently ignores is the fact that plaintiffs did raise such claim for contribution in their cross claim against defendant. However, such cross claim was dismissed when the court granted defendant's motion to dismiss on jurisdictional grounds at the eve of trial. A dismissal of such cross claim at such a late stage of the proceedings deprived plaintiffs of the opportunity to implead defendant as an additional party on a contribution claim.

More importantly, a separate action was still permissible even if plaintiffs had not raised a contribution claim in the prior action. Besides facilitating the resolution of contribution [*3]claims in one action, either by cross claim, counterclaim or impleader, CPLR §1403 explicitly recognizes that contribution may be sought in a separate action. Of course, resolution of all contribution claims in the original action is more expeditious, but there may be unique circumstances, like those presented here, where claims for contribution must be resolved by a separate action, as explicitly authorized by CPLR §1403.

The Court next examines defendant's motion for a dismissal of the complaint against him, on the ground of lack of personal jurisdiction based on the alleged failure to serve him the summons and complaint. Defendant's motion is granted to the extent of setting the issue of service of the summons and complaint down for a traverse hearing. Defendant's argument that the default judgment was improperly granted (because, inter alia, plaintiff failed to timely file the affidavit of service) is deferred until the resolution of the traverse (claim of lack of personal jurisdiction), since a resolution of the traverse in defendant's favor would render defendant's motion moot on that point moot. Similarly, all questions as to a meritorious defense and excusable default are deferred until the resolution of the traverse.

Conclusion

For the foregoing reasons, it is hereby

ORDERED that the party of defendant's motion seeking to dismiss the action on collateral estoppel and waiver grounds is denied; it is further

ORDERED that the part of defendant's motion seeking a dismissal of the action on the ground that the court lacks personal jurisdiction over defendant because he was never properly served with the summons and complaint is granted to the extent of setting the issue of service of the summons and complaint down for a traverse hearing at Supreme Court, Bronx County, Part IA-1, at 851 Grand Concourse, Bronx, New York, Room 809, at 10:00 A.M., on the 16th of October, 2006. Plaintiffs shall serve a copy of this Order upon defendant's counsel, on or before October 1, 2006; and it is further

ORDERED that the remaining issues raised defendant's motion, seeking to vacate the default as procedurally defective, is deferred until the resolution of the traverse (claim of lack of personal jurisdiction), since a resolution of the traverse in defendant's favor would render that part of his motion moot.

This constitutes the Decision and Order of this Court.

Dated: October 31, 2006____________________________

Bronx, New YorkHon. Dianne T. Renwick, JSC