Mosley v 137th St. Props., LLC

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Mosley v 137th St. Props., LLC 2012 NY Slip Op 31309(U) April 13, 2012 Sup Ct, NY County Docket Number: 117893/2009 Judge: Lucy Billings 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. ANNED ON 511712012 - [* 1] SUPREME COURT OF THE STATE OF NEW YORK L b C Y E:i_!+:Ik.GS PRESENT: 4.s.c. - NEW YORK COUNTY PART 4G I Index Number : 11789312009 . INDEX NO, MOSLEY, SEAN vs. 137TH STREET PROPERTY MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. SEQUENCE NUMBER : 004 - DlSMISS 1 thls motion tolfor I Notlce of Motion/ Order to Show Cause .. - Answering Affidavits - Exhibits v) Replying Affldavits 3 Cross-Motion: - Affidavlta - Exhibits ... z 0 K . c3 Yes . PAPERS NUMBERED I 1 NO Upon the foregoing papers, It is ordered that p m dm4 &&dM3 W t m P bsww f w k f v w , I 0 FINAL DISPOSITION 0 0 DO NOT POST Check if appropriate: Check one: m NO p [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 4 6 --X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ I _ SEAN MOSLEY, Index No. 1 1 7 8 9 3 / 2 0 0 9 Plaintiff - against - DECISION AND ORDER 1 3 7 T H STREET PROPERTIES, LLC, Defendant LUCY BILLINGS, J.S.C.: YORK Plaintiff sues to recover for personal injuries ! i ? ' ~ ~ ~ ~ ~ ~ OFFICE October 9, 2 0 0 9 , while on defendant's premises. Plaintiff commenced this action by filing a summons and complaint December 22, 2009. Defendant moves to dismiss the complaint with prejudice on the grounds of res j u d i c a t a , collateral estoppel, and issue preclusion. C.P.L.R. 5 3211(a)(5). F o r the reasons explained below, the court denies defendant's motion. Plaintiff commenced a p r i o r action to recover for personal injuries sustained October 9 , 2 0 0 9 , on defendant's premises by filing a summons and complaint October 2 0 , 2 0 0 9 , which was assigned Index No. 1 1 5 4 3 3 / 2 0 0 9 . In that action, the court (Kenney, 5 . ) granted defendant's motion to compel disclosure in an order dated May 14, 2010, which provided that "failure to comply with these Court issued orders, shall result in dismissal of the complaint, upon written notice of motion of such non- compliance.Il Aff. of Paul Tripodo Ex. A . The court (Kenney, J.) also granted a motion by plaintiff's attorney to withdraw as rnoslcy.139 ' 1 [* 3] counsel in an order dated June 24, 2010, which directed plaintiff to retain a new attorney or notify the court in writing within 30 days of his intent to proceed without an attorney and stayed the Although defendant claims Justice Kenney action for that period. dismissed the prior action due to plaintiff's noncompliance with the prior orders, the dismissal order dated June 2 , provides: 2011, simply "It is hereby ordered that the Clerk of the Court shall enter judgment in favor of defendant and against plaintiff, Tripodo Aff. Ex. F. dismissing the complaint.Il Under the doctrines of rea judicata and claim preclusion, a final judgment on a claim b a r s future actions between the same parties for the same claims or o t h e r claimB arising from the same transactions between the parties. Ross, 1 N.Y.3d 8, 1 12 ( 2 0 0 8 ) ; gosey Landau v. LaRosea, Mitchell v. Goord, 9 N.Y.3d 90 (2007); Matter of Hunter, 4 N.Y.3d 2 6 0 , Blauvelt Volunteer Fire 386, & 389- 2 6 9 ( 2 0 0 5 ) ; Parker v . 93 N.Y.2d 343, 347 (1999). The Co., judgment must be on the merits to give it preclusive effect. Landau v. LaRossa, Mitchell & Ross, 11 N.Y.3d at 13; Kalisch v. Maple Trade Fin. Corp., 35 A.D.3d 291 (1st Dep't 2 0 0 6 ) ; Espinoza v. Concordia Intl. Forwardins C o r p . , 32 A.D.3d 326, 3 2 8 (1st Dep't 2 0 0 6 ) . Defendant demonstrates that the complaints in this action and the prior action allege t h e same personal injury claim between the same parties. See Lusk v. Weinstein, 85 A.D.3d 445, 446 (1st Dep't 2011); North Am. Van Lines, I n c . v. American Intl. Cos., 38 A . D . 3 d 450, 451 (1st Dep't 2007); AmBase Corn. v. Pryor mosley - 1 39 2 [* 4] Cashman Sherman & Flvnn LEP, 35 A.D.3d 174, 175 (1st Dep t 2006). The court s dismissal of the p r i o r action, however, does not furnish a basis to dismiss this action. The order dated June 2, 2011, did not indicate whether t h e dismissal of the prior action was with or without prejudice. A judgment need not explicitly state that it is with prejudice to be treated as a determination on the merits, as long as the judgment appears to be a dismissal on the merits. e Strwme v. t d ~ n tfiore HQSB. & Med, Ct r., 59 N.Y.2d 737, 739 (1983). See Barrett v , Kasco C o r m t r . Co., 56 N.Y.2d 830, 831 (1982); Karniol v. Good Move Truckinq, 281 A.D.2d 287, 287-88 (1at Dep t 2001). The June 2011 order does not specify the reasons for t h e dismissal, however, nor has defendant presented its motion seeking dismissal and leading to that order. Without more, it must be considered as without prejudice and thus not on the merits. &nnon, C.P.L.R. 5 5103; 420 E , Assoc. v. Eatate of 225 A.D.2d 326 (1st Dep t 1996). Even accepting defendant s contention in this action that the dismissal was based on plaintiff s noncompliance with the orders of May 14, 2010, and June 24, 2010, a dismissal due to noncompliance with those o r d e r s is n o t a dismistsal on the merits. Maitland v. Trojan E l e c , & Mach. Co., 65 N.Y.2d 614, 615-16 (1985). See Stranqe v, Montefiore HWD, & Med. Ctr., 59 N.Y.2d at 739; Teiada v. 7 5 0 Gerard Props. C o r p . , 272 A.D.2d 124, 125 (1st Dep t 2000). Since t h e dismissal of the prior action was not on the merits, res i udicata does not bar plaintiff s current action, Landau, P . C . v. LaRQBPa, Mitchell mosley.139 3 & Ross, 11 N.Y.3d at [* 5] 13; Kalisch v. Maple Trade Fin. Corp,, 35 A.D.3d 291; Espinoza v . Concordia Intl. Forwardinq Corp., 3 2 A.D.3d at 328, o r any future claim within the statute of limitations. Avins v. Federation Empl. & Guidance Serv., Inc., 67 A.D.3d 505, 506 (1st Dep t 2009); 420 E. Assoc. v, Estate of Lennon, 225 A.D.2d 326. While the order of May 14, 2010, specifically required plaintiff to comply with disclosure or face dismissal, because the order further required a motion to effect dismissal, the order may not be treated as a conditional order of dismissal, which if violated by plaintiff would have preclusive effect. Stranqe v. Montefiore HOEIP. & Barrett v. Kasco C o n s t r . CQ., Med. Ctr., 59 N.Y.2d at 739; 56 N.Y.2d at 8 3 1 ; Teiada v . 750 Gerard Props. Corp., 272 A.D.2d at 125. Even if the court treated the May 2010 order as a conditional order of dismissal, however, plaintiff B commencement of this action may not be viewed as an attempt to circumvent the order, because he commenced this action before both the May 2010 order and the order direuting him to retain a new attorney or provide notice of his intent to proceed without an attorney. Finally, since the first action already had been dismissed when defendant made this motion, this action is not subject to dismiBsal on the ground that another action is pending. C.P.L.R. 5 3211(a) ( 4 ) ; J J - 3 Communic8t;ions Corp. v. SafeNet, Inc., 45 A.D.3d 1, 7-8 Chanq v . Z a w o n , 67 A.D.3d (1st Dep t 2007). 435, 436 (1st Dep t 2009); Counsel Abstract, Inc. Defined Benefit Pension Plan v . Jerome Auto C ~ I ? , , I n c . , 23 A.D.3d 274, 276 (1st rnosley.139 4 [* 6] Dep t 2005). Nor has defendant met the requirements for dismissal based on neglect to prosecute. C.P.L.R. 5 3 2 1 6 . Dismissal on that ground, in any event, would not be on the merits. Merchants T & F, IQC.v. K w e & Druker, 19 A.D.3d 134 (1st Dep t 2 0 0 5 ) . Consequently, the court denies defendant s motion to dismiss this action on each of the grounds set forth. C.P.L.R. 3211(a) ( 4 ) and ( 5 ) , 3216. §§ This deciaion constitutes the court s order. DATED: April 13, 2012 L W *111 v5 LUCY BILLINGS, J.S.C. LUCY B1LLING S J.S.C. FILED NEW YORK COUNTY CLERK S OFFICE mosley.139 5

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