Cangro v Park South Towers Assoc.

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Cangro v Park South Towers Assoc. 2013 NY Slip Op 33354(U) May 28, 2013 Sup Ct, New York County Docket Number: 100492/13 Judge: Donna M. Mills Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 5/31/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK- Nl~W YORK COUNTY PART _.._-=--58=-,-~ PRESENT : DONNA M. MILLS Justice --- ----·---------------- JENNIF!rn CANGRO, INDEX NO. 100492/13 Plaintiff~ MOTION DATE -againstPARK SOUTH TOWERS AS SOCIA TES and ROSE & ROSE, MOTION SEQ. No. · 00 I MOTION CAL No. Defendants. The following papers, numbered 1 io _ _ were read on this motion for ____ ..... _ _ __ PAPERS NUMBERED Notice of Motion/Order to Show Cause-Ai1idavits- Exhibits.... Answering Affidavits- Exhibits_ _ _ _ _ ~_ _ f_~l_L E D YE~~ NO - J J :;.YoR: ¢;t,_2_-i---uAv 3 1 ""nt t Replying AHidavits__ ·-·-·······,-,, .. ,. CROSS-MOTION: I ").., / ; COUNTY CLER~ OFFICE Upon the foregoing papers, it is ordered that thi,s motion is DECIDED IN ACCORDANCE WIT! I ATTACHED ORDER. Dated: Check one: _j_ r I FINAL DISPOSITION NON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO. 100492/13 JENNIFER CANGRO, Plaintiff, - against PARK SOUTH TOWERS ASSOCIATES and ROSE & ROSE, DECISION/ORDER Defendants. ----------------------------------------------------------------- ~ I I.. ~ ~ DONNA M. MILLS, J: MAY 3 1 2013 iI J Motion sequence numbers 001 and 002 are c~'EWl~difRI for decision. Defendants Park South Towers Associates ahi@~~~ fRf6~~W~es to dismiss the complaint as against it on the grounds that the complaint fails to state a cause of actior1 and is barred by the doctrine of collateral estoppel and res judicata. Plaintiff, Jennifec Cangro, opposes both motions. BACKGROUND Plaintiff was the tenant of 124 West 60 1h Street, Apartment 42G New York, New York 10009 pursuant to a written lease agreement with the landlord dated July 3, 2006, commencing on July 1, 2006 and expiring on June 30, 2007. The lease agreement was extended for one year until June 30, 2008 pursuant to a Renewal Lease dated April 30, 2007. Defendant South Towers Associates is the owner/landlord of the subject building where plaintiff resided. Defendant Rose and Rose was retained by the landlord to commence two summary proceedings in Housing Court against the plaintiff. Plaintiff was subsequently evicted from the subject premises on June 23, 2009. Plaintiff commenced an action in New York County Supreme Court against the same defendants herein in December of 2009, asserting 23 causes of action including [* 3] failure to provide heat in December 2006 and January 2007, failure to eliminate disturbing sounds from the apartment above, repair and maintenance deficiencies, unlawful entries to her apartment, harassment, unlawful eviction, unlawful demand for legal fees, and false statements to various courts, Defendants both moved to dismiss the complaint. Defendants' motions were granted pursuant to Justice Paul Wooten's September 21, 2010 Decision/Order. Plaintiff's complaint in the instant action is virtually the same complaint that Justice Wooten disposed of in his 2010 Decision/Order. Plaintiff's latest complaint, like her prior complaint, includes twenty three various causes of action. Defendants both contend that as a result of the dismissal of plaintiff's action in the 2010 case before Justice Wooten, her claims against them are barred by the doctrine of collateral estoppel and should be dismissed pursuant to CPLR 3211 (a)(5). This Court agrees. APPLICABLE LAW AND DISCUSSION "The doctrine of collateral estoppel ... 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" (B_yar:i v New York Tel. Co., 62 NY2d 494, 500 [1984]). Collateral estoppel effect will be given only to matters actually litigated and determined in a prior action or proceeding (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]). It must be shown that the identical issue was decided in the prior action or proceeding, is decisive in the present action, and that the party to be precluded from relitigating the issue had a full and fair opportunity to contest it (id at 455). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" (City fo New York v College Pont Sports Assn., Inc., 61 AD3d 33, 42 2 [* 4] [2009]). Once that burden is met, the party opposing the application of collateral estoppel "bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Id at 42). Defendants have met their burden by demonstrating that the cause of action in the instant action alleging, inter alia, unlawful eviction is duplicative of the cause of action previously disposed of in this very court which alleged the same facts, and does not seek distinct and different damages ( see Ofman v. Katz, 89 A.D.3d 909, 911, 933 N.Y.S.2d 101; Alizio v. Feldman, 82 A.D.3d 804, 805, 918 N.Y.S.2d 218; Mahler v. Campagna, 60 A.D.3d at 1012, 876 N.Y.S.2d 143). In opposition plaintiff failed to demonstrate the absence of a full and fair opportunity to contest the prior determination. Accordingly, it is ORDERED that the motion by Park South Towers Associates is granted and the complaint against it is dismissed in its entirety with costs and disbursements to Park South Towers Associates as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further ORDERED that the motion by Rose & Rose is granted and the complaint against it is dismissed in its entirety with costs and disburserments to Rose & Rose as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further ORDERED that the Clerk shall enter judgment accordingly. Dated: r i FILED So Order~~ j m11\ MAY 3 1 2013 Donna M_ Mills, NEW YORK COUNTY CLERK'S OFFICE 3 J.S.C.

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