Matter of Klein v Persaud

[*1] Matter of Klein v Persaud 2010 NY Slip Op 50564(U) [27 Misc 3d 1205(A)] Decided on April 7, 2010 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2010
Supreme Court, Kings County

In the Matter of the Arbitration of Abraham Klein, Petitioner,

against

Christine Persaud and CARING HOME CARE AGENCY, Respondents.



8007/09



Appearances:

Plaintiff

Mendel Zilberberg, Esq.

Paul Salazar, Esq.

Brooklyn NY

Defendant

Lawrence L. Kaye, PC

Brooklyn NY

Arthur M. Schack, J.

In this matter, the Court on April 17, 2009, upon the default of respondents CHRISTINE PERSAUD (PERSAUD) and CARING HOME CARE AGENCY (CARING), confirmed an arbitration award, by Arbitrator Marvin Nieman, Esq., dated March 31, 2009, on behalf of petitioner ABRAHAM KLEIN (KLEIN) against respondents PERSAUD and CARING.

Arbitrator Nieman ordered, among other things, that: KLEIN had a 50% ownership interest in both CARING and another entity, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY, INC. (LIBERTY); KLEIN's interest in LIBERTY will cease when [*2]KLEIN or his designee is approved by the appropriate regulatory agencies to be the sole operator of CARING; irrespective of KLEIN's ownership interests in CARING and LIBERTY, PERSAUD, CARING and LIBERTY owe KLEIN $2,172,607.58 and KLEIN will have a judgment for that amount against PERSAUD, CARING and LIBERTY jointly and severally; KLEIN can attach the receivables due to CARING and LIBERTY until the judgment is paid with statutory interest from March 31, 2009; and, PERSAUD must cooperate with KLEIN to effectuate the arbitration award.

Respondents have had various attorneys representing them in this action, including numerous subsequent counsel after respondents relieved their second counsel who failed to appear on April 17, 2009. Then, after relieving the second counsel, respondents' third counsel moved to vacate the second counsel's April 17, 2009 default. I denied this by a short-form decision and order, on May 4, 2009, because the second counsel did not have a reasonable excuse for his default. Respondents' second counsel knew on April 2, 2009, when petitioner's order to show cause to confirm the arbitration award was signed, about the April 17, 2009-court date. However, on April 17, 2009, the second counsel chose to go to Supreme Court, Queens County to appear in a matrimonial action and faxed to this Court a defective affidavit of actual engagement, with the wrong caption, no index number and silent as to the name of the judge, in violation of 22 NYCRR § 125.1 (e) (1). In my May 4, 2009 decision and order I quoted Vasquez v New York City Housing Authority (51 AD3d 781, 782 [2d Dept 2008]), which held that "a reasonable excuse for a default lies within the sound discretion of the trial court," and cited, among other cases, Moore v Day (55 AD3d 803 [2d Dept 2008]) and Green Apple Management Corp. v Aronis (55 AD3d 669 [2d Dept 2008]).

Then, respondents' next subsequent counsel (her fourth counsel) commenced a special proceeding in Supreme Court, Queens County, on May 27, 2009, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 13892/09, to vacate the subject March 31, 2009-arbitration award. The next day, May 28, 2009, this subsequent counsel cross-moved in this Court to dismiss the instant petition, pursuant to CPLR Rule 3211 (8) and (10), for lack of jurisdiction over LIBERTY and failing to join LIBERTY as a necessary party, and that Arbitrator Nieman exceeded his authority, in violation of CPLR § 7511 (b) (1) (iii), or in the alternative seeking a modification of the March 31, 2009-arbitration award.

Petitioner KLEIN's counsel, in a June 5, 2009 order to show cause, moved to consolidate the Supreme Court, Queens County LIBERTY action with the instant Supreme Court, Kings County action, or in the alternative sought joint trial, pursuant to CPLR § 602, and then, upon either consolidation or joint trial, dismissal of the LIBERTY action. Pending the resolution of this order to show cause, I stayed the Supreme Court, Queens County LIBERTY action and enjoined PERSAUD, CARING and LIBERTY from initiating any actions with respect to the March 31, 2009-arbitration award in any court, except for Supreme Court, Kings County.

As will be explained, respondents' cross-motion to dismiss the instant petition for lack of jurisdiction over LIBERTY and failing to join LIBERTY as a necessary party, as well as finding that Arbitrator Nieman exceeded his authority, is denied. Petitioner KLEIN's June 5, 2009 order to show cause is granted. The instant proceeding involves common questions of law or fact with the parallel Supreme Court, Queens County LIBERTY action. Joint trial, pursuant to CPLR § 602, is appropriate. Therefore, the Supreme Court, Queens County action, LIBERTY HOME [*3]CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 13892/09, is removed to Supreme Court, Kings County for joint trial. Further, because LIBERTY was an entity solely owned by PERSAUD and, therefore in privity with PERSAUD at the time of the subject arbitration, it was subject to the arbitration agreement between KLEIN and PERSAUD. Thus, the removed action, commenced in Supreme Court, Queens County, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 13892/09, is dismissed because of res judicata, collateral estoppel and the "law of the case" doctrine.

Denial of respondents' cross-motion to dismiss

Respondents' cross-motion to dismiss the underlying petition is improper. In the

instant action a default judgment has been awarded petitioner. Then, respondents moved to vacate the default judgment and the Court denied that motion because respondents failed to have a reasonable excuse for their default. Respondents' instant cross-motion to dismiss the petition should have been a motion to vacate the prior order, pursuant to CPLR Rule 2221, not a CPLR Rule 3211 motion to dismiss. "No plenary action lies to set aside a prior judgment. This can only be effectuated by a proper and timely motion tovacate (CPLR 2221). Even assuming that subsequent to the judgment against them in defendant's original action, plaintiffs somehow were successful on a motion to dismiss defendant's complaint in that action, any such dismissal was obviously a complete nullity." (James v Shave, 97 AD2d 927 [3d Dept 1983]). (See Imbesi v First Federal Sav. and Loan Ass'n of Rochester, 229 AD2d 471 [2d Dept 1996]).

Further, the merits of the underlying arbitration award are not before the Court. The March 31, 2009-arbitration award was confirmed by this Court on April 17, 2009. Respondents' motion to vacate the April 17, 2009 order confirming the arbitration award was denied on May 4, 2009. Moreover, it is public policy in New York that when courts are presented with a petition to confirm or deny an arbitrator's award, the presumption in favor of an arbitration award is extremely strong. "Once a dispute has moved to arbitration, a party seeking to vacate the award has a heavy burden because questions of law and fact are merged in the award and are not within the power of the judiciary to resolve (see North Syracuse Central School District v North Syracuse Education Association, 45 NY2d 195 [1978]; Integrated Sales, Inc. v Maxell Corp. of America, 94 AD2d 221, 224 [1d Dept 1983])." (Fishman v Roxanne Management, 24 AD3d 365, 366 [1d Dept 2005]).

Moreover, respondent PERSAUD was notified about the arbitration hearing and decided not to appear at the March 19, 2009 arbitration hearing. Arbitrator Nieman conducted the hearing in her absence and determined the controversy based upon the evidence produced, pursuant to CPLR § 7506 (c). PERSAUD's willful failure to appear at the arbitration hearing cannot be used to subsequently attack the arbitrator's findings of fact and his award. "The respondents cannot benefit from their own failure to appear at the arbitration as scheduled." (Griffin v Ayash, 125 AD2d 226, 227 [1d Dept 1986]). "Unjustified refusal to participate in an arbitration hearing does not afford a basis for attack upon an award rendered on default (CPLR 7506 [c]) and may not be utilized to frustrate this State's strong public policy of encouraging, by judicial noninterference, an unfettered, [*4]voluntary arbitration system, where equity should be done' [citations omitted]." (Chawki v New York City Dept. of Educ., Manhattan High Schools, Dist. 71, 39 AD3d 321, 324 [1d Dept 2007]).

Even if the Court decided to entertain respondents' cross-motion, Arbitrator Nieman did not exceed his authority, in violation of CPLR § 7511 (b) (1) (iii), in making his award. An arbitrator exceeds his authority, pursuant to CPLR § 7511 (b) (1) (iii), when "the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." (New York City Transit Authority v Transport Workers' Union of America, Local 100, AFL-CIO, 6 NY3d 332 [2005]). (See New York City Transit Authority v Transport Workers' Union of America, Local 100, 14 NY3d 119 [2010]; Henneberry v ING Capital Advisors, LLC, 10 NY3d 278, 284 [2008]; Board of Educ. of the Dover Union Free School District v Dover-Wingdale Teachers' Assn., 61 NY2d 913, 915 [1984]); Erin Const. and Development Corp., Inc. v Meltzer, 58 AD3d 729 [2d Dept 2009]). "An arbitrator's paramount responsibility is to reach an equitable result, and the courts will not assume the role of overseers to mold the award to conform to their sense of justice. Thus, an arbitrator's award will not be vacated for errors of law and fact committed by the arbitrator." (Matter of Sprinzen, 46 NY2d 623, 629 [1979]).

Reviewing courts in New York are bound by an arbitrator's findings of fact and legal conclusions. The Court of Appeals, in New York State Correctional Officers & Police Benevolent Assn., Inc. v State of New York (94 NY2d 321, 326-327 [1999]), instructed:

Courts are bound by an arbitrator's factual findings, interpretation

of the contract and judgment concerning remedies. A court cannot

examine the merits of an arbitration award and substitute its judgment

for that of the arbitrator simply because it believes its interpretation

would be the better one. Indeed, even in circumstances where an

arbitrator makes errors of law or fact, courts will not assume the role

of overseers to conform the award to their sense of justice . . .

Simply put then, the issue before this Court is not whether we

agree with the arbitrator's assessment of the evidence, interpretation

of the contract or reasoning in fashioning the award. We are not

authorized to revisit those questions. We must focus on the result

only, and can vacate the award if the arbitration agreement itself

violates public policy; if the award intrudes into areas reserved for

others to resolve; or if, because of its reach, the award violates an [*5]

explicit law of this State.

Thus, Arbitrator Nieman, in his March 31, 2009 arbitration award, fashioned a remedy based upon the agreements between KLEIN and PERSAUD and their conduct. In his findings of fact, Arbitrator Nieman found that: in ¶ 18, "Klein invested money in

. . . Liberty Home Care Nurses Employment Agency, Inc. . . . which is owned by Persaud"; in ¶ 19, "Persaud induced Klein to invest into the Liberty enterprise and agreed with Klein that the same terms of the Agreement in place with Persaud and Caring would be the terms of the agreement between them as to the Liberty enterprise."; in ¶ 20, "Liberty, at least in part used the resources of Caring in the operation of its business."; and, in ¶ 24, "Persaud did not adhere to the terms of the Agreements between Klein and Persaud in the Caring deal with respect to Liberty."

Furthermore, the May 11, 2007 arbitration agreement between PERSAUD, CARING's sole owner, and KLEIN is very broad. It provided that "[a]ny dispute, impasse or controversy arising among the parties regarding any covenant, term or condition of this Agreement, or any claim relating thereto, or the breach thereto, or any decision for which the parties cannot reach agreement, should be submitted to binding arbitration in front of Marvin Nieman, Esq." This agreement also bound LIBERTY, wholly owned by PERSAUD, because an agreement this broad includes all related claims, including those of related corporations that did not sign the original agreement. (Siegel v 141 Bowery Corp., 51 AD2d 209 [1d Dept 1976]). "When determining whether a particular dispute is arbitrable, a court must determine whether the dispute falls within the scope of the arbitration agreement' (Maross Constr. v Central NY Regional Transp. Auth., 66 NY2d 341 [1985]) and whether the dispute is one that may be submitted to arbitration without violation of any law or public policy' (id. at 346)." (Platovsky v City of New York, 49 AD3d 842, 842-843 [2d Dept 2008]).

It is clear that Arbitrator Nieman found that LIBERTY was subject to the arbitration agreement between PERSAUD and KLEIN, because PERSAUD disregarded the requirements of the corporate form in handling the operations of CARING, an unincorporated entity, and LIBERTY. Therefore, PERSAUD cannot claim that LIBERTY, a distinct corporation, did not have notice that KLEIN would raise a claim before Arbitrator Nieman for the money he invested in LIBERTY, pursuant to the arbitration agreement. It was within the Arbitrator's authority to determine that PERSAUD dominated her wholly-owned corporation LIBERTY and acted as its "alter ego." This allowed Arbitrator Nieman to "pierce the corporate veil" and bind nonsignatory LIBERTY to the PERSAUD-KLEIN arbitration agreement. (TSN Holdings, Inc. v MKI Securities Corp., 92 NY2d 335, 339 [1998]; Habitations, Ltd. Inc. v BKL Realty Sales Corp., 169 AD2d 657 [2d Dept 1991]). "Once it is determined that a party is bound by an arbitration provision, however, public policy does not bar an arbitrator from disregarding the corporate form where there is a rational basis for doing so." (Roeffler v [*6]Spear, Leeds & Kellogg, 13 AD3d 308, 312-313 [2d Dept 2004]). In the instant action, Arbitrator Nieman determined from the evidence presented to him that PERSAUD dominated LIBERTY, using KLEIN's funds and CARING's assets to fund and operate LIBERTY. Therefore, Arbitrator Nieman's inclusion of LIBERTY's assets in his award was rational, and supported by his findings of facts in the March 31, 2009-arbitration award.

Moreover, the instant cross-motion for dismissal, based on CPLR Rule 3211 (8), for lack of personal jurisdiction of LIBERTY, and CPLR Rule 3211 (10), for the absence from this instant action of LIBERTY, an indispensable party, is improper. PERSAUD was served with notice, prior to the arbitration hearing, that KLEIN would raise issues related to LIBERTY at the arbitration hearing. However, PERSAUD failed to contest Arbitrator Nieman's authority to decide this issue: by moving before the Court in advance of the March 31, 2009 arbitration hearing; at the arbitration hearing (where she intentionally defaulted); at petitioner KLEIN's April 2, 2009 application for injunctive relief pending the confirmation of the arbitration award; at the April 17, 2009 hearing before this Court to confirm the arbitration award (where she defaulted); and, at a hearing before this Court on her unsuccessful motion to vacate the default judgment confirming the arbitration award.

Instead, PERSAUD now uses her wholly owned corporation, LIBERTY, to improperly challenge the subject arbitration award in a blatant attempt to obtain another bite of the proverbial apple. PERSAUD's knowledge as the sole shareowner and officer of LIBERTY is constructive knowledge by LIBERTY. "The knowledge of Brown as the individual and grantor was the knowledge of the corporation. What he knew regarding the transaction, it also knew. As heretofore said, he was the sole stockholder and officer, the board of directors." (In re Brown's Will, 252 NY 366, 378 [1930]). In Yager Pontiac, Inc. v Fred A. Danker and Sons, Inc. (69 Misc 2d 546 [Sup Ct, Albany County [1972]), the Court cited In re Brown's Will, at 551, holding that "[u]nder these circumstances, the knowledge of Frederick A. Danker, Sr. as the grantor of the easement must be imputed to the corporation of which he was president and a director and stockholder, and the corporation must be charged with such knowledge." LIBERTY received actual notice of the arbitration when PERSAUD received notice. Thus, "when notice has been sent to the proper address and is received by the real party in interest, the lack of the actual corporate name of the owner of record is not fatal" and where "the real party in interest, was actually aware of the existence and nature of the pending action in time to defend . . . the constitutionally-required standard of notice was met." (Pompe v City of Yonkers, 179 AD2d 628, 630 [2d Dept 1992]). The Court of Appeals instructed, in Harris Beckman v Greentree Securities, Inc. (87 NY2d 566, 570[1996]):

Due process does not require actual receipt of notice before a person's

liberty or property interests may be adjudicated; it is sufficient that [*7]

the means selected for providing notice was "reasonably calculated,

under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present

their objections" (Mullane v Central Hanover Bank & Trust Co.,

339 US 306, 314 [1950]).

With respect to respondents' claim that the instant action should be dismissed, pursuant to CPLR Rule 3211 (10), because LIBERTY, an indispensable party, has not appeared, it is clear that LIBERTY has appeared through PERSAUD, its "alter ego." Further, Professor David Siegel, in his Practice Commentaries (McKinneys's Cons Laws of NY, Book 7B, CPLR 3211:34), explains:

Paragraph 10 permits a dismissal when it is shown that a

person indispensable to the action has not been, and cannot be, made

a party. It is the very last step on the long CPLR road that replaces

the "indispensable party" doctrine of prior law.

As the CPLR is set up, this provision should be rarely used. To

avoid the often arbitrary results that ensued under prior law, in which

an unjoined and unjoinable person could be labeled "indispensable"

right off and the action quickly dismissed because of his absence, the

CPLR even avoids use of the word "indispensable". It speaks in the

softer terms of a person who "ought to be" a party. See CPLR 1001

(a). Most importantly, it unambiguously instructs the court to look

very carefully at the case before reaching any decision on the issue.If the person who should be made a party but hasn't been, the

court's course is simply to order him joined. CPLR 1001 (b). This

the court can do at any time, on motion or sua sponte. CPLR 1003.

The joinder resolves the problem by the best route possible. It is only

where the person is not subject to the court's jurisdiction, and will not

appear voluntarily, that the next step is taken.

LIBERTY is a New York corporation doing business in the State, subject to the jurisdiction of this Court and has already appeared de facto through PERSAUD, rendering moot the claim that as an indispensable party it has not appeared. Also, through much of the motion practice in this case, the attorneys who represented PERSAUD also represented LIBERTY. This Court, as Professor Siegel suggested, will sua sponte resolve LIBERTY's nonappearance in the instant action "by the best route possible." [*8]Petitioner KLEIN is ordered, pursuant to CPLR §§ 1001 (b) and 1003, to summon LIBERTY into the instant action as an additional respondent. The caption is amended to:

_____________________________________________

In the Matter of the Arbitration of ABRAHAM KLEIN,

Petitioner,

- against -Index No. 8007/09

CHRISTINE PERSAUD, CARING HOME CARE

AGENCY and LIBERTY HOME CARE NURSES

EMPLOYMENT AGENCY, INC.,

Respondents.

_____________________________________________

Granting petitioner's order to show cause for joint trial

with the LIBERTY action and dismissal of the Liberty action

Joint trial of the instant action with the LIBERTY action brought in Supreme Court, Queens County is appropriate. CPLR § 602, "Consolidation" states:

(a) Generally. When actions involving a common question of law or

fact are pending before a court, the court, upon motion, may order a

joint trial of any or all the matters in issue, may order the actions

consolidated, and may make such other orders concerning proceedings

therein as may tend to avoid unnecessary costs or delay.

In this dispute between the parties, there are common questions of law of fact in the instant action and the Queens LIBERTY action. Arbitrator Nieman made findings of fact that KLEIN invested monies in LIBERTY under the same agreement as CARING, and LIBERTY used the resources of CARING. In both actions there is a single controversy, the validity of Arbitrator Nieman's March 31, 2009-arbitration award. PERSAUD had notice prior to the arbitration hearing that LIBERTY, an entity solely owned by her, was being dealt with at the arbitration hearing. She did not seek a stay of the arbitration and failed to attend the arbitration hearing. LIBERTY, through its sole owner alter ego PERSAUD, was subject to the broad and valid arbitration agreement between KLEIN and PERSAUD

PERSAUD defaulted in this Court, on April 17, 2009, when the arbitration award was confirmed and failed to demonstrate to this Court, on May 4, 2009, that she had a valid excuse for her default. Then, PERSAUD's third counsel (the second counsel defaulted at both the arbitration hearing and in this Court on April 17, 2009) brought the motion to vacate the April 17, 2009 default to me, not another judge of the Supreme Court, King County. "A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who [*9]signed the order, unless he or she is for any reason unable to hear it, except that: 1. if the order was made upon a default such motion may be made, on notice, to any judge of the court [Emphasis added]." (CPLR Rule 2221 [a]). After I denied the motion to vacate the default, on May 4, 2009, the only remedy available to PERSAUD was to appeal to the Appellate Division, Second Department. PERSAUD's third counsel appealed. However, his application to stay enforcement of the March 31, 2009- arbitration award pending the appeal of my May 4, 2009 order was denied by the Appellate Division, on May 11, 2009. (2009 NY Slip Op 72138 [U]).

However, subsequent to the Appellate Division's May 11, 2009 order, PERSAUD relieved her third counsel and retained her fourth counsel in this matter. The fourth counsel's May 27, 2009 commencement of the LIBERTY action in Supreme Court, Queens County, is nothing more than a blatant attempt by PERSAUD, LIBERTY's alter ego, to attempt to stay: the enforcement of Arbitrator Nieman's March 31, 2009- arbitration award; my confirmation of the arbitration award; my denial of vacating respondents' April 17, 2010 default; and, the Appellate Division's May 11, 2009 order. All of this is done under the pretext that LIBERTY was not named in the caption of the instant Supreme Court, Kings County action. Thus, PERSAUD seeks to have the validity of the March 31, 2009-arbitration award dealt with simultaneously in both Kings County and Queens County Supreme Courts, as well as in the Appellate Division, Second Department.

"A motion to consolidate actions pursuant to CPLR 602 (a) rests in the sound

discretion of the trial court (see, Marshall v Monegro Investors, 132 AD2d 651; Cushing v Cushing, 85 AD2d 809)." (Rodgers v Worrell, 214 AD2d 553, 554 [2d Dept 1995]).(See Pitney Bowes Credit Corp. v Biometrics/Seafield Center, 302 AD2d 508 [2d Dept 2003]; Gadelov v Shure, 274 AD2d 375 [2d Dept 2000]; McDutchess Builders, Inc. v McDutchess Knolls, Inc., 244 AD2d 534[2d Dept 1997]). "A motion to consolidate pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by a party opposing the motion (see Mas-Edwards v Ultimate Servs. Inc., 45 AD3d 540; Kelly v Mount Sinai Hosp., 44 AD3d 1010; GAM Prop. Corp. v Sorrento Lactalis, Inc., 41 AD3d 645; Nigro v Pickett, 39 AD3d 720)." (Viafax Corp. v Citicorp Leasing, Inc. 54 AD3d 846, 850 [2d Dept 2008]).

Both the instant action and the LIBERTY action arise from the same transactions, concern the same parties and involve common questions of law and fact. There is no prejudice arising from joining the two actions. The interests of justice and judicial economy will be served by this joinder. "A review of the record indicates that the interests of justice and judicial economy would be served by consolidation of this action [with another action] . . . since both actions concern the same parties, the claims arise out of the same circumstances, and the proof with respect to each action will overlap and turn on credibility determinations of the nature of the relationship of the parties."(Nigro v Pickett, 39 AD3d 720, supra at 722). (See Pinecrest Nat. Funding, LLC v Aatlas-B Properties, [*10]Inc., 68 AD3d 833 [2d Dept 2009]; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, supra; Best Price Jewelers. Com, Inc. v Internet Data Storage & Systems, Inc., 51 AD3d 839 [2d Dept 2008]; Mas-Edwards v Ultimate Servs. Inc., 45 AD3d 540, supra).

Consolidating the instant action with the LIBERTY action would have KLEIN and PERSAUD appearing as both petitioners and respondents and lead to jury confusion. Therefore, the actions are brought together for joint trial. (Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332 [1d Dept 2005]; M & K Computer Corp. v MBS Industries, Inc., 271 AD2d 660 [2d Dept 2000]).

Kings County is the proper venue of the joint trial, since the first action was

commenced in Kings County. "Where actions commenced in different counties are consolidated pursuant to CPLR 602 the venue should be placed in the county where the first action was commenced, unless special circumstances exist, which in the sound discretion of the court, warrant placement of venue elsewhere." (Gadelov v Shure, 274 AD2d 375, supra). (See Mas-Edwards v Ultimate Servs. Inc., 45 AD3d 540, supra; Nigro v Pickett, 39 AD3d 720, supra; Moor v Moor, 39 AD3d 507 [2d Dept 2007]; Perini Corp. v WDF, Inc., 33 AD3d 605 [2d Dept 2006]; Mattia v Food Emporium, Inc., 259 AD2d 527 [2d Dept 1999]). In this dispute, there are no special circumstances present that warrant placement of this dispute elsewhere.

The LIBERTY action removed to Kings County must be dismissed. The March 31, 2009-arbitration award binds LIBERTY, a corporation in privity with PERSAUD. LIBERTY is precluded from litigating against KLEIN in Supreme Court, Queens County by res judicata and collateral estoppel. Further the LIBERTY action is procedurally defective by violating the "law of the case" doctrine, by requesting that a justice of a court of concurrent jurisdiction in a different county, Queens County, overrule my April 17, 2009 order confirming the March 31, 2009-arbitration award and my May 4, 2009 order, which denied vacating the April 17, 2009 default of respondent PERSAUD, who binds LIBERTY, and respondent CARING.

Res judicata and collateral estoppelare doctrines of claim and issue preclusion, designed to put an end to a matter that has been decided. The Queens County LIBERTY action raises the same issues as the instant action. It all goes back to the validity of Arbitrator Nieman's March 31, 2009-arbitration award. Again, the instant action and the LIBERTY action arise from the same transactions, concern the same parties and involve common questions of law and fact. LIBERTY, solely owned by PERSAUD, is in privity with PERSAUD and identified with her in interest. The U.S. Supreme Court, in Litchfield v Crane (123 US 549, 551 [1887]), instructed that:

to give full effect to the principle by which parties are held bound

by a judgment, all persons who are represented by the parties and

claim under them, or in privity with them, are equally concluded

by the same proceedings. We have already seen that the term privity' [*11]

denotes mutual or successive relationship to the same rights of property.

The ground, therefore, upon which persons standing in this relation to the

litigating party are bound by the proceedings to which he was a party is

that they are identified with him in interest; and whenever this identity

is found to exist, all are alike concluded. Hence, all privies, whether in

estate, in blood, or in law, are estopped from litigating that which is

conclusive on him with whom they are in privity.

(See Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 486 [1979]; Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]; In re Shea's Will, 309 NY 605 617 [1956]; Avco Sec. Sys., Inc. v Beigel, 29 AD3d 837 [2d Dept 2006]; State v Seaport Manor, A.C.F., 19 AD3d 609, 610 [2d Dept 2005]; Shire Realty Corp. v Schorr, 55 AD2d 356, 360-361 [2d Dept 1977]). It is clear, as explained previously, that LIBERTY received actual notice of the arbitration when PERSAUD received notice. Yet, after not appearing at the arbitration hearing or at the hearing to confirm the arbitration award, and after unsuccessfully moving to vacate her default or have the Appellate Division stay enforcement of my May 4, 2009 order, PERSAUD decided to use LIBERTY as a vehicle to attempt to continue to litigate issues involved with her business dealings with KLEIN and their arbitration agreement, despite their resolution in this Court.

Professor David Siegel in NY Prac, 4th ed. § 442, explains that:

The doctrine of res judicata is designed to put an end to a

matter once duly decided. It forbids relitigation of the matter as an

unjustifiable duplication, an unwarranted burden on the courts as

well as on opposing parties. Its main predicate is that the party against

whom it is being invoked has already had a day in court, and, if it

was not satisfactory, the proper course was to appeal the unsatisfactory

result rather than ignore it and attempt its relitigation in a separate action.

Judge Cardozo, for a unanimous Court of Appeals, in Schuylkill Fuel Corp. v B & C Nieberg Realty Corp., (250 NY 304, 306-307 [1929]) instructed that "[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 . . ." In O'Brien v City of Syracuse (54 NY2d 353, 357 [1981]), Chief Judge Cooke, also for a unanimous Court of Appeals, noted that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy . . ." (See Coliseum Towers Associates v County of Nassau, 217 AD2d 387 [2d Dept 1996]; Yerg v Board of Educ. of Nyack Union Free School District, 141 AD2d 537 [2d Dept 1988]). [*12]

Collateral estoppel or "issue preclusion," as observed by Prof. Siegel, in NY Prac §443, at 748-749, [4th ed], "scans the first action and takes note of each issue decided in it. Then if the second action, although based on a different cause of action, attempts to reintroduce the same issue, collateral estoppel intervenes to preclude its relitigation and to bind the party, against whom the doctrine is being invoked, to the way the issue was decided in the first action." In Ryan v New York Telephone Company (62 NY2d 494, 500 [1984]), the Court of Appeals, held that "[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same [Emphasis added]." Two prerequisites must be met before collateral estoppel can be raised. The Court of Appeals, in Buechel v Bain (97 NY2d 295 [2001], cert denied 535 US 1096 [2002]), instructed at 303-304, that:

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 contest the decision now

said to be controlling (see, Gilberg v Barnieri, 53 NY2d 285, 291

[1981]). 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 (see, id.). The

party to be precluded from relitigating the issue bears the burden of

demonstrating the absence of a full and fair opportunity to contest

the prior determination. [Emphasis added]

(See D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 supra; Westchester County Correction Officers Benevolent Ass'n, Inc. v County of Westchester, 65 AD3d 1226, 1227 [2d Dept 2009]; Franklin Dev. Co. Inc. v Atlantic Mut. Ins. Co., 60 AD3d 897, 899 [2d Dept 2009]; Luscher ex. rel Luscher v Arrua, 21 AD3d 1005 [2d Dept 2005]; David v American Bio Medica Corp., 299 AD2d 390 [2d Dept 2002]).

Further, the LIBERTY action violates the "law of the case" doctrine, which is "a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned." (Martin v City of Cohoes, 37 NY2d 162, 265 [1975]). The LIBERTY action sought to have a justice of the Supreme Court, Queens County review my April 17 and May 4, 2009 orders. Moreover, "[t]he law of the case doctrine is based upon the fundamental principle that a judge may not review or overrule an order of another judge of coordinate jurisdiction in the same action or proceeding (see Matter of Cellamare v Lakeman, 36 AD3d 905 [2d Dept 2007]; Forbush v Forbush, 115 AD2d 335 [4d Dept 1985])." (Barr v Cannata, 57 AD3d 813, 814 [2d Dept 2008])." (See In re

Jonathan M., 61 AD3d 1374, 1375 [4d Dept 2009]; Ayala v S.S. Fortaleza, 40 AD3d 440 [*13][1d Dept 2007]).

Thus, the issues in the LIBERTY action have been litigated and the action formerly in Supreme Court, Queens County, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, is dismissed because of res judicata, collateral estoppel and violation of the law of the case doctrine.

Conclusion

Accordingly, it is

ORDERED, that the cross-motion of respondents, CHRISTINE PERSAUD and CARING HOME CARE AGENCY, to dismiss the instant petition, pursuant to CPLR Rule 3211 (8) and (10), for lack of jurisdiction over LIBERTY and failing to join LIBERTY as a necessary party, and that Arbitrator Nieman exceeded his authority, in violation of CPLR § 7511 (b) (1) (iii), or in the alternative seeking a modification of the March 31, 2009-arbitration award, is denied; and it is further

ORDERED, that Petitioner ABRAHAM KLEIN is ordered, pursuant to CPLR §§

1001 (b) and 1003, to summon LIBERTY into the instant action as an additional

respondent, and the caption of the instant action is amended to:

_____________________________________________

In the Matter of the Arbitration of ABRAHAM KLEIN,

Petitioner,

- against -Index No. 8007/09

CHRISTINE PERSAUD, CARING HOME CARE

AGENCY and LIBERTY HOME CARE NURSES

EMPLOYMENT AGENCY, INC.,

Respondents.

_____________________________________________;

and it is further

ORDERED, that Petitioner ABRAHAM KLEIN's order to show cause, to consolidate the instant action with the Supreme Court, Queens County action, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 13892/09, is granted, and the Supreme Court, Queens County action, LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 913892/09, is, pursuant to CPLR § 602, removed to Supreme Court, Kings County for joint trial with the instant action; and it is further

ORDERED, that the removed action, commenced in Supreme Court, Queens County, [*14]LIBERTY HOME CARE NURSES EMPLOYMENT AGENCY INC. v ABRAHAM KLEIN, Index No. 13892/09, is dismissed.

This constitutes the Decision and Order of the Court.

ENTER

___________________________HON. ARTHUR M. SCHACK

J. S. C.