Miller v Moore

Miller v Moore 2012 NY Slip Op 09115 Decided on December 27, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 27, 2012
514212

[*1]MILDRED C. MILLER, Individually and as Personal Representative of the Estate of CARL W. MILLER, Deceased, Appellant,

v

MICHAEL C. MOORE et al., Respondents.

Calendar Date: November 14, 2012
Before: Rose, J.P., Lahtinen, Spain, Kavanagh and McCarthy, JJ.


Connie Fern Miller, Watkins Glen, for appellant.
Hiscock & Barclay, Rochester (John R. Casey of
counsel), for respondents.

MEMORANDUM AND ORDER


Rose, J.P.

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered November 29, 2011 in Tompkins County, upon a verdict rendered in favor of defendants.

The underlying facts are more fully set forth in our prior decision in this action (68 AD3d 1325 [2009]). Briefly, plaintiff and Carl W. Miller entered into a listing agreement with defendant Warren Real Estate of Ithaca, Inc., through its agent, defendant Michael C. Moore, to sell their lakefront property. At the request of plaintiff and Miller, Moore hired and supervised a crew to clear the property of overgrown vegetation in order to improve the view of the lake and prepare the property for sale. Plaintiff and Miller were displeased, however, upon seeing the number of trees and bushes that had been cut, and they eventually commenced this action for, among other things, breach of contract, restoration costs, treble damages pursuant to RPAPL former 861 and diminution of property value.

During the first jury trial, defendants moved pursuant to CPLR 4401 for a directed verdict. Supreme Court (Mulvey, J.) partially granted defendants' motion from the bench by dismissing all but the second cause of action for restoration costs. The court reserved decision on the second cause of action pending submission of questions to the jury. The jury then found [*2]in defendants' favor, determining that while the cutting was not done with permission, it did not diminish the value of the property. Thereafter, Supreme Court issued a written decision and order holding that plaintiff and Miller had failed to offer any evidence contradicting defendants' proof that the value of the property had not been diminished, and the court granted defendants' motion for judgment as a matter of law by dismissing the complaint in its entirety pursuant to CPLR 4401. Plaintiff and Miller appealed from that order, limiting their arguments to the first cause of action for breach of contract and the third cause of action for treble damages pursuant to RPAPL former 861. We then modified the order by reinstating only those two causes of action and remitted for a new trial (68 AD3d at 1327-1328). Prior to the second trial, plaintiff and Miller moved for partial summary judgment on the question of whether Moore had permission to cut based on the jury's determination in the first trial that he had acted without permission. Supreme Court (Sherman, J.) denied the motion and, at the second trial, the jury found in favor of defendants on both the first and third causes of action. Plaintiff now appeals, arguing that the first jury's specific finding that Moore did not have permission should have been given collateral estoppel effect. We cannot agree.

"[W]hen a judgment or order is entered, a determination will generally not be given preclusive effect unless the resolution of the issue was 'essential' to the decision rendered in the first action or proceeding" (Church v New York State Thruway Auth., 16 AD3d 808, 810 [2005]; see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]; accord Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d 689, 691 [2011]). Although the first jury answered a question in favor of plaintiff and Miller, the judgment entered was not in their favor. Because the specific finding that plaintiff seeks to rely upon was not essential to the judgment, plaintiff cannot use the finding for its preclusive effect (see Donahue v New York Life Ins. Co., 259 NY 98, 102 [1932]; Brizse v Lisman, 231 NY 205, 208 [1921]). Furthermore, the posttrial order of Supreme Court (Mulvey, J.) granting defendants' motion for a directed verdict dismissed the complaint in its entirety, including the second cause of action, without considering the issue of permission. Thus, under no circumstance can the jury's finding on permission be considered necessary to the outcome of the first trial. As the prior jury verdict was never "one 'from which the resolution of the ultimate legal issue necessarily followed,'" it can have no preclusive effect (Church v New York State Thruway Auth., 16 AD3d at 810, quoting Hinchey v Sellers, 7 NY2d 287, 293 [1959]; see Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d at 692; see also Citrin v Baratta & Goldstein, 62 AD3d 405, 406 [2009]; State of New York v Moore, 298 AD2d 814, 815-816 [2002]). We need not address plaintiff's remaining arguments, as they pertain only to issues that would arise on a retrial.

Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, with costs.