Rosen v Levy

[*1] Rosen v Levy 2008 NY Slip Op 50467(U) [19 Misc 3d 1101(A)] Decided on March 12, 2008 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2008
Supreme Court, Bronx County

Emily Rosen, Plaintiff(s),

against

Larry D. Levy, M.Z. Hafizlehaja and Jean Aguilel Viaud, Defendant(s).



16486/07

Nelson Roman, J.

Defendants M.Z. HAFIZLEHAJA (MZ) JEAN AGUILEL VIAUD (Jean) move seeking an Order pursuant to CPLR §§3211(a)(5) dismissing the instant action as barred by res judicata and collateral estoppel. MZ and Jean contend that this is plaintiff's second action against the very same defendants and that to the extent that the claims are identical and the prior action was dismissed, dismissal of this action is warranted as a matter of law. Defendant LARRY D. LEVY (Levy) separately moves for identical relief and for identical reasons. Plaintiff opposes the instant motions averring that insofar as the prior action was dismissed for plaintiff's failure to provide discovery and on default, the instant action is not barred by collateral estoppel and/or res judicata.

For the reasons that follow hereinafter, defendants' motions are hereby denied.

The instant action is for alleged personal injuries. The verified complaint alleges that on July 31, 2004, plaintiff was injured when she was involved in a motor vehicle accident with a vehicle owned and operated by defendants. It is alleged that defendants were negligent with regard to the operation of their motor vehicle and that said negligence was the cause of plaintiff's injury.

In support of the instant motion, MZ and Jean submit a copy of a summons and complaint bearing index No.23600. The parties to said action are identical to the parties herein and the claims are also identical. MZ and Jean submitted a copy of their answer to the aforementioned action. MZ and Jean submitted a copy of an Order dated March 23, 2007, wherein JSC Stinson dismissed the aforementioned action upon MZ and Jean's motion. Said dismissal was premised upon plaintiff's failure to provide discovery and said motion was granted default. MZ and Jean submit a copy of the summons and complaint in the instant action and a copy of their answer to the same. Said answer contains an affirmative defense alleging that the instant action is barred by res judicata and collateral estoppel. [*2]

In support of his motion, Levy submits no evidence.

In opposition to the instant motions, plaintiff submits a change of attorney form, not relevant to the action herein.

CPLR §3211(a)(5)

CPLR 3211(a)(5) authorizes the dismissal of an action when

the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Res Judicata

The doctrine of res judicata serves to preclude a party from re-litigating issues of fact and law decided in a prior proceeding. The doctrine holds that

as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action.

Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481 (1979). Res judicata precludes renewal of issues actually litigated and resolved in a prior proceeding. Id.; Luscher v. Arrua, 21 AD3d 1005 (2nd Dept. 2005);Koether v. Generalow, 213 AD2d 379 (2nd Dept. 1995); New York Site Development Corporation v. New York State Department of Environmental Conservation, 217 AD2d 699 (2nd Dept. 1995). It also precludes litigation of claims for different relief which arise from the same facts or transaction, which should or could have been resolved in the prior proceeding even if they weren't. Id. The party seeking to avail itself of the doctrine must demonstrate that the issue sought litigated was critical and decided in the prior action and that the party against whom the doctrine is being asserted had a full and fair opportunity to contest the issue. Id. In discussing the doctrine, Justice Cardozo wrote

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. It is not conclusive, however, to the same extent when the two causes of action are different, not in form only, but in the rights and interests affected. The estoppel is limited in such circumstances to the point actually determined. (Internal citations omitted).

Schuylkill Fuel Corporation v. B. & C. Nieberg Realty Corporation, Inc., 250 NY 304, 306-307 (1929). [*3]

Mutuality or identity of parties is an essential element in any res judicata analysis, and it is well settled that there must be identity of parties in order to invoke the doctrine. Israel v. Wood, 1 NY2d 116 (1956). However, mutuality or identity of parties shall be found if it is demonstrated that the party against whom preclusion is sought, had a full and fair opportunity to litigate all issues actually litigated or all issues which could have been litigated. Id. The court in Israel, stated

Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues.

Id. at 119.It is well settled that the doctrine of res judicata only bars a subsequent action when the prior action was concluded on the merits. Holley v. Mandate Realty Corp., 121 AD2d 202 (1st Dept. 1986); Mudry v. Giannattasio, 8 AD3d 455 (2nd Dept. 2004); Gallo v. Teplitz Tri-State Recycling, Inc., 254 AD2d 253 (2nd Dept. 1998); Lewin v. Yedvarb, 61 AD2d 1025 (2nd Dept. 1978).

Collateral Estoppel

The doctrine of collateral estoppel prevents a party from re-litigating an issue when said issue was previously litigated and decided against said party. David v. Biondo, 92 NY2d 318 (1998); Ryan v. New York Telephone Company, 62 NY2d 494 (1984); Zimmerman v. Tower Insurance Company of New York, 13 AD3d 137 (1st Dept. 2004). In order to invoke the doctrine of collateral estoppel it must be demonstrated that the issue being raised was identical to an issue previously litigated and decided, that the issue is decisive in the present action, and the party against whom the doctrine is being asserted had full and fair opportunity to contest and litigate the issue in the prior action. Id.; Browing Avenue Realty Corp., v. Rubin, 207 AD2d 263 (1st Dept. 1994); Color by Pergament, Inc., v. O'Henry's Film Works, Inc., 278 AD2d 92 (1st Dept. 2000). The doctrine of collateral estoppel also serves to preclude a party from litigating issues previously resolved against it when raised against new parties not part of the prior action where said issue was litigated and resolved. Corto v. Lefrak, 203 AD2d 94 (1st Dept. 1994).

The proponent of collateral estoppel has the burden of demonstrating the identity of issues the present and prior action and the party opposing the applicability of collateral estoppel has the burden of establishing absence of an opportunity to litigate the issue in a prior action. Kaufman v. Eli Lilly and Company, 65 NY2d 449 (1985).

When a prior matter has been resolved on default, the defaulting party has not had an opportunity to litigate the matter and as such the doctrine of collateral estoppel does not bar the re-litigation of the prior issue resolved on default. Zimmerman v. Tower Insurance Company of New York, 13 AD3d 137 (1st Dept. 2004). This is because an issue has not been litigated if "there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation." Matter of Abady, 22 AD2d 83, 71 (1st Dept. 2005); Kanat v. Ochsner, 301 AD2d 456 (1st Dept. 2003). The Court does recognize an exception where the doctrine of collateral estoppel will apply when a prior action has been resolved on default; that exception being when a party "has appeared in the prior action or proceeding and has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request." Matter of Abady, 22 AD2d 83-84, 71 (1st Dept. 2005). [*4]

It is well settled that the doctrine of collateral estoppel only bars the litigation of a previously concluded issue when the same was concluded on the merits. Alamo v. McDaniel, 44 AD3d 149 (1st Dept. 2007); Miller v. County of Suffolk, 2008 NY Slip Op. 10310 (2nd Dept. 2008); Mudry v. Giannaasio, 8 AD3d 455 (2nd Dept. 2004).

Res Judicata and Dismissal for Failure to Provide Discovery

It has long been held that where an action is dismissed for a plaintiff's failure to provide discovery, said dismissal, is not generally a dismissal on the merits and as such does not bar the commencement of a subsequent action. Maitland v. Trojan Electric & Machine Co., Inc., 65 NY2d 614 (1985); Aguilar v. Jacoby, 34 AD3d 706 (2nd Dept. 2006). This is because a dismissal for failure to comply with discovery is not on the merits and thus does not prevent the initiation of a subsequent action between the same parties, with the same allegations. Id. An exception to this general rule is where the dismissal for failure to provide discovery is preceded by a prior order, precluding the plaintiff form offering evidence at trial. Id.; Strange v. Montefiore Hospital and Medical Center, 59 NY2d 737 (1983); Barret v. Kasco Construction Co., Inc., 56 NY2d 830 (1982); Kalinka v. Saint Francis Hospital, 34 AD3d 742 (2nd Dept.. 2006); Jardine Emett & Chandler New York, Inc. v. Armored Transport of New York, 204 AD2d 606 (2nd Dept. 1994); Leeds v. Strum, Tuger and Co., Inc., 101 AD2d 881 (2nd Dept. 1984); Palmer v. Fox, 28 AD2d 968 (4th Dept. 1967). The rationale which underpins the exception is that once a preclusion order has been issued a plaintiff should not be allowed to commence a subsequent and identical action since the goal of such an action is to circumvent the previously issued order of preclusion. Id.

Discussion

Defendants' motions are hereby denied. To the extent that defendants seek dismissal of the within action pursuant to CPLR §3211(a)(5) on grounds that the action herein is barred by res judicata and/or collateral estoppel, the motion is denied insofar as the doctrines of collateral estoppel and res judicata do not apply under the circumstances herein. It is well settled that res judicata and collateral estoppel only bar a subsequent action or the re-litigation of previously decided claims when the prior action or issues were concluded and decided on the merits. It is equally well settled that dismissal of a prior action for failure to provide discovery is not a dismissal on the merits so as to preclude a subsequent identical action or the re-litigation of previously alleged and identical claims, unless said dismissal was preceded by an order of preclusion. In this case, as evinced by the Court's Order dated March 23, 2007, the prior action was dismissed for plaintiff's failure to provide discovery and thus in the absence of any evidence that said dismissal was preceded by a preclusion Order, said dismissal was not on the merits and does not bar the instant action on grounds of res judicata and/or collateral estoppel. Moreover, to the extent that said action was dismissed on default, res judicata and/or collateral estoppel do not bar the instant action. Accordingly, defendants' motion is hereby denied. It is hereby

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon defendants within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :March 12, 2008 [*5]

Bronx, New York

_____________________________Nelson S. Roman, J.S.C.