Klin Constr. Group, Inc. v Blue Diamond Group Corp.

[*1] Klin Constr. Group, Inc. v Blue Diamond Group Corp. 2009 NY Slip Op 52245(U) [25 Misc 3d 1222(A)] Decided on November 9, 2009 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2009
Supreme Court, Kings County

Klin Construction Group, Inc., Plaintiff,

against

Blue Diamond Group Corp. and Northside Tower Realty, LLC, Defendants.



5215/09



Plaintiff

Chunya Jean Wang, Esq.

Wang Law Office, PLLC

Flushing NY

Defendants

Jonathan L. Scher, Esq.

The Scher Law Firm, LLP

Carle Place NY

Arthur M. Schack, J.

Defendants BLUE DIAMOND GROUP CORP. (BLUE DIAMOND) and NORTHSIDE TOWER REALTY, LLC (NORTHSIDE) seek dismissal of the instant complaint by plaintiff KLIN CONSTRUCTION GROUP, INC. (KLIN), pursuant to CPLR Rule 3211 (a) (4), (7) and (10). Plaintiff KLIN seeks: judgment on a mechanic's lien for $109,762.98 against BLUE DIAMOND and NORTHSIDE; that the surety bond given on this mechanic's lien, for $120,739.28, be awarded to KLIN; and, related relief.

Background

Subsequent to the filing of the instant motion, this Court issued rendered decisions and orders in two related cases, Northside Tower Realty, LLC v Klin Construction Group, Inc., Index No. 32978/08, 23 Misc 3d 1116 (A) on April 24, 2009 and Blue Diamond Group, Corp. v Klin Construction Group, Inc., Index No. 32979/08, 23 Misc 3d 1120 (A) on May 6, 2009. These two [*2]decisions and orders render the instant action moot because of collateral estoppel and res judicata. CPLR Rule 3211 (a) (5).

In these two decisions, this Court ordered the discharge and cancellation of the $109,762.98 mechanic's lien docketed in the Office of the Kings County Clerk, on November 21, 2008, by KLIN, for labor performed for the improvement of property at 142 North 6th Street, Brooklyn, New York, owned by NORTHSIDE. KLIN was a subcontractor for excavation and foundation work at the subject premises. NORTHSIDE made final payment on October 7, 2008 of the $1,900,000.00 contract amount owed to its general contractor, BLUE DIAMOND, for the excavation and foundation work at 142 North 6th Street. This exhausted and satisfied the NORTHSIDE to BLUE DIAMOND contractual obligation 45 days prior to the filing of KLIN's mechanic's lien. Thus, the KLIN mechanics's lien was discharged and cancelled because the lien attached to nothing, with the contract sum for excavation and foundation fully paid before the filing of the KLIN mechanic's lien. The Kings County Clerk was directed to reflect this discharge and cancellation in the Lien Docket.

BLUE DIAMOND, on December 17, 2008, posted a bond for $120,739.28, discharging KLIN's November 21, 2008-mechanic's lien. Then, KLIN, on December 18, 2008, filed a claim with the Kings County Clerk against the bond for the lien amount of $109,762.98. However, the discharge of KLIN's mechanic's lien rendered KLIN's claim to the bond a nullity and this Court in Blue Diamond concluded:

ORDERED, that the December 17, 2008 "Bond Discharging

Mechanic's Lien" for $120,739.28, filed on behalf of BLUE DIAMOND

GROUP CORP., "conditioned for the payment of any all judgments

which may be rendered . . . in favor of KLIN Construction Group,

Inc., . . . to enforce their alleged lien" of November 21, 2008 is moot, and

the December 18, 2008 claim filed by respondent KLIN CONSTRUCTION

GROUP, INC. for $109,762.98 against said "Bond Discharging Mechanic's

Lien," is discharged; and, it is further

ORDERED, that the Kings County Clerk is directed to mark the

Lien Bond Docket to reflect that the above-referenced December 17,

2008 "Bond Discharging Mechanic's Lien" for $120,739.28, filed on

behalf of BLUE DIAMOND GROUP CORP., is discharged and

cancelled.

Discussion

The two decisions by this Court in Northside Tower and Blue Diamond bar the instant complaint by KLIN because of the doctrines of res judicata and collateral estoppel.

These doctrines of claim and issue preclusion are designed to put an end to a matter that has been decided. Northside Tower and Blue Diamond discharged and cancelled the subject November 21, 2008 mechanic's lien and Blue Diamond discharged and cancelled the December 17, 2008-bond discharging the mechanic's lien. The legitimacy of the mechanic's lien and the surety bond were decided in the Northside Tower and Blue Diamond cases.

Professor David Siegel in NY Prac, 4th ed. § 442, explains that:

The doctrine of res judicata is designed to put an end to a

matter once duly decided. It forbids relitigation of the matter as an [*3]

unjustifiable duplication, an unwarranted burden on the courts as

well as on opposing parties. Its main predicate is that the party against

whom it is being invoked has already had a day in court, and, if it

was not satisfactory, the proper course was to appeal the unsatisfactory

result rather than ignore it and attempt its relitigation in a separate action.

Judge Cardozo, for a unanimous Court of Appeals, in Schuylkill Fuel Corp. v B & C Nieberg RealtyCorp., (250 NY 304, 306-307 [1929]) instructed that "[a] judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first . . . " In O'Brien v City of Syracuse (54 NY2d 353, 357, 1981), Chief Judge Cooke, also for a unanimous Court of Appeals, noted 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 . . ." (See Coliseum Towers Associates v County of Nassau, 217AD2d 387 [2d Dept 1996]; Yerg v Board of Educ. of Nyack Union Free School District, 141 AD2d 537 [2d Dept 1988]).

Collateral estoppel or "issue preclusion," as observed by Prof. Siegel, in NY Prac §443, at 748-749, [4th ed], "scans the first action and takes note of each issue decided in it. Then if the second action, although based on a different cause of action, attempts to reintroduce the same issue, collateral estoppel intervenes to preclude its relitigation and to bind the party, against whom the doctrine is being invoked, to the way the issue was decided in the first action." In Ryan v New York Telephone Company (62 NY2d 494, 500 [1984]), the Court of Appeals, held that "[t]he 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 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." Two prerequisites must be met before collateral estoppel can be raised. The Court of Appeals, in Buechel v Bain (97 NY2d 295 [2001], cert denied 535 US 1096 [2002]), instructed at 303-304, that:

There must be an identity of issue which has necessarily been decided

in the prior action and is decisive of the present action, and there

must have been a full and fair opportunity to contest the decision now

said to be controlling (see, Gilberg v Barnieri, 53 NY2d 285, 291

[1981]). The litigant seeking the benefit of collateral estoppel must

demonstrate that the decisive issue was necessarily decided in the prior

action against a party, or one in privity with a party (see, id.). The

party to be precluded from relitigating the issue bears the burden of

demonstrating the absence of a full and fair opportunity to contest

the prior determination

(See D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]; Luscher ex. rel Luscher v Arrua, 21 AD3d 1005 [2d Dept 2005]; David v American Bio Medica Corp., 299 AD2d 390 [2d Dept 2002]).

Thus, the issues in the instant action have been litigated and the instant action is now moot and a nullity. It is dismissed.

[*4]Conclusion

Accordingly, it is

ORDERED, that the motion of defendants BLUE DIAMOND GROUP CORP. and NORTHSIDE TOWER REALTY, LLC to dismiss the instant complaint by plaintiff KLIN CONSTRUCTION GROUP, INC., pursuant to CPLR Rule 3211 (a) (5), is granted.

This constitutes the decision and order of the Court.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.