Cangro v Rosado

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Cangro v Rosado 2012 NY Slip Op 30673(U) March 14, 2012 Supreme Court, New York County Docket Number: 104562/2010 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312112012 I [* 1] I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: JENNIFER CANGRO, Plaintiff, -w- 104562/10 Motion Date: 01/31 2 /I Motion Seq. No.: MARY ROSADO, Defendant. 03 Motion Cal. No.: The following papers, numbered 1 to 6 were read on this motion for summary judgment. PAPER$ NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits 1 2 - 5 Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: No Yes Upon the foregoing papers, The c o u r t s h a l l treat t h e motion of plaintiff p r o se as one for summary judgment a n d shall d e n y same and the court shall grant the defendant's cross-motion for summary judgment dismissing the complaint. The court agrees w i t h defendant's argument that all of plaintiff's claims, with t h e exception of plaintiff's 1 8 t h cause of action f o r defamation, are barred by the doctrine of collateral estoppel. As s t a t e d by the Court of Appeals The equitable d o c t r i n e of collateral estoppel i s grounded in the facts and realities of a particular litigation, rather than r i g i d rules. Collateral estoppel precludes a Check One: Check if appropriate: FINAL DISPOSITION a DO NOT POST 0 NON-FINAL DISPOSITION 0 REFERENCE [* 2] party from relitigating in a subsequent action or proceeding an issue raised in a prior action o r proceeding a n d decided against that party or those in privity. The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result. Two requirements must be met before collateral estoppel can be invoked. 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 c o n t e s t the decision now said to be controlling. 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. The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and f a i r opportunity to contest the prior determination. BuechFtl v Bain, 97 NY2d 295, 303 -304 (2001) (citations omitted). In Matter of Reitano (89 AD3d 535 [l" Dept 2011]), the Appellate Division, First Department, upon appeal after remand of the proceeding Matt er of Rosado ( Canqro) (45 A D 3 d 281 [13' Dept 2 0 0 7 ] ) , in its decision demonstrates that all of the requirements necessary to apply the collateral estoppel bar are present in this case. The Court found that plaintiff here was provided with a full opportunity to litigate all of the issues presented in connection with the defendant's court-appointed representation of her. The C o u r t stated that We f i n d that appellant [Jennifer Cangro] was not denied due process under the New York State Constitution. Pursuant to this Court's order (Matter of Rosado ICanqrol, 45 AD3d 281 [2007]), and as required by CPLR 1201, a guardian ad litem was properly appointed to represent appellant's interests in this proceeding in which she contested the accounting and fees awarded to Rosado. Appellant was provided ample opportunity to make her arguments regarding the accounting, in writings by -2- [* 3] her and her guardian ad litem, and she was also permitted to o r a l l y argue her position at a hearing. Similarly, the record is devoid of evidence that could be construed as a denial of appellant's right to equal protection. Matte r of Reitano, 89 A D 3 d at 536. The issues raised in this litigation by the plaintiff a r e the precisely the issues determined by the Court in Reitano as they concern defendant's representation of plaintiff in connection with a court-appointed guardianship. As decisively stated by the Court Supreme Court properly confirmed the Special Referee's report since the Referee's findings were supported by the record and there is no basis on this record to set aside his findings. Supreme Court also proper lv awarded respondent RQ sad0 commis$ions fQs: h er work as aBp ellant's quardian, as the c ecord contains nq evidence ~f wronqdoinq. The court prop erlv exercised i t s discretioq in awardins a fee to Rosado f~r extraordinarv services j n liu ht of the sisnificant t h e an d effort she spent o n a p p e l lant's bphalf. Supreme Court properly awarded the various fees to others involved in the matter. The fees for the guardian ad litem, the special referee, and Rosado's counsel for this final accounting were supported by affidavits or affirmations of services and were reasonable fees for the services provided. Moreover, the sums were a p p r o p r i a t e l v charqed to Canqro sine e her b a s e l e s s accxsations necessitated this addi tj QP a1 p r o c e e d i n u . The approval of the fees previously paid to Solomon, Reitano and L e f a r i was proper since they had also been supported by affidavits or affirmations of services, were reasonable, and were not objected to b y the referee. & (citations omitted, emphasis added). Plaintiff's allegations in this action a r e therefore barred by the doctrine of collateral estoppel as the C o u r t has previously found'that they are wholly unsupported and baseless [* 4] and plaintiff's attempt to relitigate t h e s e matters borders on the contemptuous. As this action was commenced before the Appellate Division decision of November 2011, the court shall not in this instance impose sanctions upon plaintiff for relitigating these issues but plaintiff should be on notice that further "baseless accusations" may lead to the imposition of restraints on bringing further suits in addition to monetary penalties. Cf, Mat ter of R ~ s do a ( C a n q r o ) , 45 AD3d at 282. With respect to plaintiff's leth c a u s e of action defamation, the court shall dismiss plaintiff's for claims because plaintiff fails to set forth with specificity any defematory words uttered by defendant. The statements a b o u t plaintiff "suffering from mental illness" and \\ emotionally disturbed'' were contained in a police "aided" report and there is no evidence these words, even if capable of a defamatory meaning, were uttered by defendant. Even assuming that defendant stated the plaintiff had an "impaired view of reality" such a statement is non-actionable opinion in the context in which it was alleged to have b e e n u t t e r e d . See Lapine v Seinfeu, 31 Misc 3d 736, 752 ( S u p Ct, N Y County, 2011) (allegations defendant called plaintiff "a wacko," "nut" and "mentally unhinged" held not to be actionable factual statements). Accordingly, it is -4- [* 5] ORDERED that plaintiff's motion is D E N I E D in its entirety; and it is further ORDERED that defendant's cross-motion f o r summary judgment dismissing the complaint is GRANTED and the C l e r k is d i r e c t e d to e n t e r judgment DISMISSING the complaint. This is the decision and o r d e r of the court. Dated: March 14, 2012 ENTER : OEBRA A. JAMES -5- .. - .

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