Ember v Denizard

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Ember v Denizard 2017 NY Slip Op 32704(U) December 22, 2017 Supreme Court, New York County Docket Number: 151379/2016 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 1] NYSCEF DOC. NO. 102 INDEX NO. 151379/2016 RECEIVED NYSCEF: 12/27/2017 / SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART; .4 6 ---~-=~-~~-~~-~--~--~~--~---~7--~-~-~-x MAX EMBER, Index'. No .. 151379/2016 Plaintiff - against . .... - ' .. CHARLENE.DENIZARD, DANIELLE.BIRKENFELD, ROGER BROWN, MICHAEL· HOWARD SAJJL,' 65 . WEST 95TH OWNERS CORP.r FENWICK .KEATS MANAGEMENT, ;ENC. , anp R:. J:' PANDA, .· DECISION.AND ORDER ' Defendants l -~-----~----------------~-~-~~--------x . - ~ , LUCY BILLINGS, J.S.C.: Defendants: previously movecl to dismi'ss. the complaint :based '., '• .· . . on its failure to 'sta'te· a claim, 'documentary evidence, releases, res judicata~ and another periding~prbceediµg~ _ C.P,L~R. 32ll(a) (1), ' (4), (5), and (7) ·. § In 'a decision dated August 3!· ' 2017, the court granted de'fendants' motion based on ·res.· j.udicata. C.P.L.R. 32ll(a) (5) •. Plaintif.f now moves to reargue § defendants I motion to dismiss hi,s. first. claim only'· which seeks damages for his respiratory condition :caused' by their· failure' to provide heat in his cooperative apartment in 2014,· . .C.P.L.R. § 2221 (d) . I . . . PRIOR LITIGATION BETWEEN PLAINTIFF AND· DEFENDANTS The court. dismissed this . ffrst cl'aim bas.ed on a ~tipulation of Settlement dated. October 26, 20~5 '· b~tweeµ p·la,intiff and all defendants here:, in ·a proc·eedirig by· defertdcirtt residential . ' ' cooperative corporation against plaintiff, a unit o\.iner in the cooperative' s building. ember.i91 In that proceeding plciiritiff 1 2 of 8 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 2] INDEX NO. 151379/2016 ... NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/27/2017 counterclaimed for condition$ dangerous to his health caused by the cooperative's failure t? proviqe he?-t in his cooperative apartment in 2 014 ~ More. sigqificantly, the St.ipulation of Settlement requires that, upon compliance with the Stipulation, plaintiff was to exchange release's that release all defendants now named in this action from liability for any. claims plaintiff.: ever had, now has, or may have against RELEASEE, for, upon or by reason of any matter, cause, or thing whatsoever, from .the beginning of the world to· the date of this Release; but limited to those claims asserted and/or that could have been asserted by Max Ember in the proceeding commenced in the Civil Court of the City of New York, County of New York, entitled 65 West 95th Owners Corp.· v ~· Max Ember 'et al. Index No. L&T 51752/2015 and the action commenced in the Supreme Court of the State-of New York,. County of New York, entitled Max Ember v. Charlene Denizard; et al., Index No. 652142/2014. I r Aff. in Opp'n of Max Ember (May 12, 2016).Ex. added) . c ~ 5 (emphases The complaint in this actiort does not mention the October 2015 Stipulation of Settlement in the Civil Court.· proceeding, let alone allege. defendants' rioncompli'c:i.nce with that Stipulation of Settlement. Insofar as plaintiff insist~ that the parties did not intend the Stipulation of Settlement to preclude a later action based. on a theory or seeking.relief not litigat~d in· the prior proceeding or actiori, the Stipulation of Settlement's agreement to execute the releases is the best evidence of the parties' intent. 24 N.Y.3d 239, 245 Ellington v. EMI Music, Inc., (20i4); Schron v. Troutman SandersLLP, 20 N.Y'.3d 430, 436 (2013); Marin v. Constitution Realty, 128 A.D.3d 505, 507 (1st Dep't 2015). Also significant is the priQr action in this court to which ember.191 2 3 of 8 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 3] NYSCEF DOC. NO. 102 INDEX NO. 151379/2016 RECEIVED NYSCEF: 12/27/2017 the releases refer a:r;id which alleged conditions in plaintiff's apartment in 2014 that "are, and contimJ,e to be, dangerous, hazardous and/or detrimental to Plaintiff's :).ife, health and safety. Said cohditions include, ·but are not limited to; the following: · 11 (a)' lack of .heat :arid non-working heating system Af~. of Jeffrey H. Roth (Sept; 7, 2011) E~. E • 14. That action further alleged that the conduct by the same defendants as in this action in failing to provide heat "has injured· the Pla_intiff," id. • 32, for which_,.."Plairttiff is· entitled to compensatory damages." Discontinuance dated Novemb~r Id . - - • 33. . A Stipulation of 2, 2015; discontinued those. claims with prejudice. II. THAT LITIGATION'S PRECLUSIVE EFFECT ON THIS ACTION The complaint in this action i:-epeats those allegations almost_ Verbatim, except plaintiff specifies that·the lack of heat and defendants'· failure to repair the heating system in 2014 have caused him to suffer pneumonia, and the detriment to his health and injury for which he is entitled to compensatory qamages. include irreparable damage -to his lungs. Even though the·. diagnosis of damage to·his lungs· was.after the Stipulation of Settlement and Stipulation of Discontinuance, this damage was caused by defendants' same conduct during 2014 alleged.by plaintiff in both .the prior Sup·reme Court action and the prior Civil Court proceeding. See Berkowitz v. Fischbein, Badillo, Wagner & Harding, .7 A.D.3d 385; 387 (lst·Dep't 2004) ·This damage thus· might have been claimed in the prior ember.191 3 4 of 8 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 4] INDEX NO. 151379/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/27/2017 Supreme Court action as among the detriments to his health and injuries he developed or would deyelop_ from defendants'. same conduct; ev~n if based on different theories or seeking additional relief,· and therefore is.precluded. 4 N. y. 3d 260 I -269 (2005); Matter of Empire· State Building Assoc.' L.L.C. Participant Litig.,. 13) Jone~ Matter of Hunter, A.D~3d 518, 5j8. (ist Dep't 2015); v. Riese Organization, 93 A.D,3d 598, 598-99 (1st Dep't 2012); Fifty CPW Tenants Corp. v-.-Epsteirt, -1_6 A.D.3d 292, 293-94 (1st Dep't 2005). See Centro Empressarial Cempressa S.A. v. America Movil, S.A.B. de C.V., 17 N;Y.3d 269, 276 (2011); Long v. O'Neill, 126 A.D.3d 404, 407-408 (1st Dep't 2015); Broyhill Furniture Indus., Inc. v. Hudson Furniture Galleries, LLC, 61 A. D . 3 d 5 5 4 , 5 5 5 _ ( 1st Dep' t 2 oo9) ; Langhorne v. _Am chem Prods . , Inc., 23 A.D.3d 20~, 209 (1st Dep't 2005). His claim for damage to his lungs accrued when plaintiff suffered the lack of heat in his apartment, not when the damage _was .diagnosed. c;_.P_.L.R. § 214 (5); Sanchez v. National R.R. Passenger Corp., 21 N.Y.-3d 890, 891 (2013); Kent v. 534 E. 11th St.,· 80 A.D.3d 109,· 11-2 - (1st Dep't 2010); Miniero v. City of New.Yorkj 65 A.D.3d 861, 862 (1st Dep't 2009); Torres v. Greyhound Bus Lines, 1265 (4th Dep't 2008). See, ~, Inc., 48 A.D.3d 1264, Mohonk Preserve, Inc. v. Ullrich, 119 A.D.3d 1130, 1134 (3d Dep't 2014). Lack of heat is _not a latent hazard, a claim for .which accrues _when the injury is, discovered. C.P.L.R. §_ 214-c; Fabiano v. Philip Morris Inc., 54 A.D.3d 146, 152 (1st Dep't 2008). preserve a claim for future ember.191 If pl_aintiff sought ·to fu~ther 4 5 of 8 injuries to his health or r [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 5] NYSCEF DOC. NO. 102 INDEX NO. 151379/2016 RECEIVED NYSCEF: 12/27/2017 other effects from the fully evident cold condition of his apartment that might develop after th~·stipulation of Settlement, he needed to .reserve such ~-a right expressly in the Stip11lation or releases. Longv. O'Neill, 126-A.D.3d at 408; Broyhill Furniture Indus., Inc. v. Hudson Furniture Galleries, LLC; 61 A.D.3d at 555; Fifty CPW Tenants Corp. v. Epstein; 16 A.D.3d at·294; Gowda v. Reddy, 105 A. D. 3d 95_7, 958 (.2d· Dep' t .2013) . ·See Ellington v. EMI Music, Inc., 24 N.Y.3d.at 246; Schron v. Troutman Sanders LLP, 20 N.Y.3d at 437. III. PLAINTIFF'S REMAINING REMEDIES Plaintiff may be relieved bf the requirement to. execute the releases if he persuades the Civil-Court, before which the Stipulation of Settlement requiring them was executed, that defendants have not complied with that Stipulation, but have continued to treat him differently from all other cooperative . ( shareholders in violation of the Stipulation or otherwise violated it. Depending on the extent to which the.Stipulation remains intact, it still imposes its oWh preclusive effect without the releases, as ddes the Stipulation of Discontinuance with prejudice in the prior Supreme Court action .. Matter of Empire State Building Assoc~. L.L.C. Participant Litig., 133 A.D.3d at 538; Jones v. Riese Organization, 93 A.D.3d at 598-99; Fifty CPW Tenants Corp. v. Epstein, 16.A.D.3d at 293-94. -The s.tipulation of Discontinu(inc:e precludes only the clai'ms alleged in the Supreme Court action, howev~r, wi_thout encompassirig claims that might have been. alleged or that.· plaintiff might have as are ember.191 5 6 of 8 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 6] .... NYSCEF DOC. NO. 102 INDEX NO. 151379/2016 RECEIVED NYSCEF: 12/27/2017 encompassed in the required releases. Nonetheless, that action was not limited, as"plaintiff now insists, "to claims.of unlawful discriminatio.n. Yet plaintiff may maintain an·action claiming that, through conduct after the two _stipulations were executed, defendants have further discrimina.ted ur.i.lCl.wfi.llly aga~nst him. . He did ·not allege any such subsequent ,discrimination in this. action. ·.Similarly, he . . may maintain _an action claiming that, through defendants' . failure - t.o provide adequate heat or to repair their building's heating system after the·stipulations_were executed,. defendants have I . caused further injuries to his health.· IV. CONCLUSION The court didnot·overlook any of the above analysis in reaching the August 2_017 decision to dismiss. plaintiff's. first claim. C.P.;L.R .. I § 2221(d) (2); Windham v. New-York City Tr. Auth., 1_15 A.D~3d 597, 600 • ..• •' . ' I 454 .. . • (1st Dep't 2014); Social-Serv.- Empls. Union, LocaL 371 v. New York City Bd. of Correction, 454 . (1st -Dep' t .2012) ; - Hernandez v .. 93 A.D. 3d St.:_ Stephen of .Hungary - School, 72 A.D.3d 595, 595 (1st Dep't 2010) ;_ See People 2~9 D'Alessandro, 13 N.Y.3d. 216, v. (2009); Board of Educ. of City Sch. Dist. of city of N'.Y. v. Grullon, 117.A.D.3d 572, 573 (1st Dep't 2014); Scelzo v. Acklini:s Realty Holding LLC,-_-101 A.D.3d· I 468, 468 (1st Dep't 2012). Until the Civil Court vacates any part of the Stipulation of Set_tlement, its requirement for 'the releases binds both plaintiff and this court and bars any future claim based on defendants' conduct alleged in the Civil Court ember.191 6 7 of 8 [*FILED: NEW YORK COUNTY CLERK 12/27/2017 02:57 PM 7] INDEX NO. 151379/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/27/2017 proceeding or in plaintiff's prior Supreme court action. Berkowitz v. Fischbein, Badillo, Wagner & Harding, 7·A,D.3d at 3 8 7. ·. See Calavano v .. New York City Health. A.D.3d 317,·319 (1stbep't 1998). &· Hosps -~ Corp. , .24 6. Therefore the ccru.'rtdenies plaintiff's motion for reargument.· C.P.L.R. 2221(d) .. § The court also. denies defenda~ts' .request-for further sanctions, which is not sought via a cross-motion. § 130-1.1. 22 N.Y.C.R.R. See Matter of Lawrence, 79 A.D.3d 417; 417 (1st Dep't 2010); Corrigan v. Orosco, 84 A.D.3d 955,· 956 (2d Dep't 2011); Greenwood Trust. Co. v .. Roylance, 280 A.D.2d 848, 849 (3d Dep't 2001). The court's prior award 6f ianctions was based piimarily on the second through eighth claims, which were indistinguishable from the claims in plaintiff's prior Su~rem~ Court·action; Contrary to plaintiff's interpretation, the award was not based on defendants' char.acter attacks. Plaintiff's current mot.ion does not seek to· reinstate the second through eighth .claims. Moreover, defendants' repeated character attacks and tactics to divert attention from the merits in opposing plaintiff's current motion is reason alone to deny defendants' request for sanctions in connection with this motion. Landes v. Landes, 248·A.D.2d 268, 269 (1st Dep't 1998). DATED: December 22, 2017 1 L_·vv-(}~~. . . . . .. LUCY BILLINGS, ~.S.C; ' •. LUCY BiLUNGS J.s.c. ember.191 7 8 of 8

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