Brian Rind D.V.M., P.C. v All Sentient Beings, Inc.
Annotate this CaseDecided on September 10, 2015
District Court of Nassau County, First District
Brian Rind D.V.M., P.C., d/b/a GREAT NECK ANIMAL HOSPITAL, Plaintiff(s)
against
All Sentient Beings, Inc. and GREGG MAYER, Defendant(s) ALL SENTIENT BEINGS, INC. and GREGG MAYER, Third-Party Plaintiffs, FELICIA VERNASKAS, Third-Party Defendant
CV-017501-14
Peter Seideman, Esq., Attorney for Plaintiffs, 136 East Main Street, East Islip, New York 11730, 631-224-4040; O'Melveny & Myers, LLP, Attorneys for Defendant and Third Party Plaintiffs, 7 Times Square, New York, New York 10036, 212-326-2000; Nora Constance Marino, Esq., Attorney for Third Party Defendant, 175 East Shore Road, Great Neck, New York 11023, 516-829-8399.
Scott Fairgrieve, J.
In the present action, Plaintiff Brian Rind D.V.M., P.C. d/b/a Great Neck Animal Hospital claims that All Sentient Beings, Inc. and Gregg Mayer are liable for medical services rendered to rescue cats in the sum of $12,336.14.
All Sentient Beings, Inc. and Gregg Mayer served a third party summons and third party complaint against Felicia Vernaskas.
The third party complaint alleges that Felicia Vernaskas became a volunteer with All Sentient Beings, Inc. and then a board member and vice president. It is further alleged that in 2010 or 2011, Felicia Vernaskas opened an account with Plaintiff, giving All Sentient Beings, Inc.'s name as responsible for the charges from treatment of the rescue cats. Felicia Vernaskas allegedly brought cats to Plaintiff from the time that the account was opened through "late 2013." Indemnification and/or contribution are sought by the Third Party Plaintiffs against Felicia Vernaskas. Third Party Plaintiffs allege that Felicia Vernaskas was "not given authority or permission" to make them [*2]liable for services rendered to the cats which Felicia Vernaskas brought to Plaintiff.
A prior action was commenced in this court by Great Neck Animal Hospital against All Sentient Beings, Felicia Vernaskas, Greg Mayer, and Alex Booth, under index no. CV-005939-14. That prior action sought damages for services rendered to rescue cats at the request of Defendants. Defendants All Sentient Beings, Inc. and Gregg Mayer moved to dismiss the complaint asserted against them based upon CPLR 3211 (a)(7). The Plaintiff cross-moved for leave to serve an amended complaint against All Sentient Beings, Inc. and Gregg Mayer pursuant to CPLR 3025(b).
Defendant Felicia Vernaskas cross-moved for summary judgment against Plaintiff. The cross claims asserted by Defendant Felicia Vernaskas against the co-defendants for indemnification were never ruled upon by Judge Murphy.
In his decision dated August 27, 2014, Judge Murphy held that Plaintiff had failed to allege any cognizable theory to support its claims against Defendants All Sentient Beings, Inc. and Gregg Mayer. The cross motion for leave to amend the complaint was denied.
Judge Murphy also granted the cross motion made by Felicia Vernaskas for summary judgment because Plaintiff failed to submit opposition thereto.
As previously noted, this present action was brought by Brian Rind, D.V.M., P.C. d/b/a Great Neck Animal Hospital against All Sentient Beings, Inc. and Gregg Mayer. Plaintiff seeks $12,336.14 for veterinary services rendered for rescue cats at the request of Defendants. Defendants moved for dismissal of the case at bar on the grounds of res judicata, based upon Judge Murphy's prior dismissal for failure to state a cause of action. This court denied that motion by its decision dated April 9, 2015.
Third Party Defendant Felicia Vernaskas now alleges that Judge Murphy's grant of summary judgment in her favor bars the instant third party complaint. Dismissal is warranted, she contends, because Judge Murphy ruled on the merits of the Plaintiff's claims that she had no legal responsibility for the services rendered to rescue cats. It is further argued that the Third Party Plaintiffs failed to oppose Felicia Vernaskas' motion for summary judgment, "which included ample proof that Vernaskas was not liable, such as a detailed affidavit, copies of emails, copies of checks, inter alia." Thus, Third Party Defendant, Felicia Vernaskas maintains that All Sentient Beings, Inc. and Gregg Mayer "had a full and fair opportunity to oppose this motion."
Third Party Plaintiffs argue that they never alleged any claims against Felicia Vernaskas in the previous action. They never submitted opposition to Felicia Vernaskas' motion for summary judgment because they had moved to dismiss pursuant to CPLR 3211(a)(7), prior to service of their answer. The Third Party Plaintiffs further aver that they would have served an answer with claims against Felicia Vernaskas if Judge Murphy had denied their motion.
Third Party Plaintiffs cite City of New York v. Welsbach Electric Corp., 9 NY3d 124, 848 NYS2d 551 (2007), for the proposition that the third party complaint here can be maintained because their present claims were never ruled upon by Judge Murphy.
In City of New York v. Welsbach Electric Corp., Welsbach contracted with the City of New York in 1992 to maintain traffic signals in Queens. In 1993, a two car accident occurred in Queens at an intersection controlled by a traffic signal maintained by Welsbach. A negligence action was commenced by a driver and passenger of one [*3]car (the Angerome plaintiffs) against the other driver John Malin, Welsbach and the City. Welsbach asserted a cross claim against the City and the other defendants. The City did not cross claim against Welsbach. Welsbach was dismissed from the case because it owed no "duty in tort or contract to members of the general public to perform its duties under its contract" ... .
The case went to trial before a jury. The City was found 100% liable for plaintiffs' injuries due to the malfunctioning traffic light. The drivers were found not liable because each had a green light when entering into the intersection.
After paying the judgment, the City filed a suit against Welsbach for indemnification or contribution based upon its alleged failure to maintain the traffic signal. Welsbach argued that the City's action was barred by res judicata or collateral estoppel due to the prior grant of summary judgment.
The Court of Appeals rejected Welsbach's arguments because Welsbach's liability to the City was not decided previously. Thus, the City was permitted to maintain its claims against Welsbach.
This court finds that the Welsbach holding supports the claims of Third Party Plaintiffs All Sentient Beings, Inc. and Gregg Mayer against Felicia Vernaskas based upon indemnification and/or contribution.
The issues of whether Felicia Vernaskas opened up an account in the name of All Sentient Beings, Inc. without permission or authority and had rescue cat services inappropriately charged to this account on behalf of All Sentient Beings, Inc., were never decided in the prior action. Third Party Plaintiffs never had an opportunity to litigate their claims against Felicia Vernaskas, because they never asserted cross claims in the prior action because they had not served an answer prior to their dismissal from the previous action based upon Judge Murphy's decision.
Conclusion
The motion to dismiss the third party action is denied. Res judicata and collateral estoppel are inopposite to bar the instant claims based upon indemnification or contribution.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:September 10, 2015
cc:Nora Constance Marino, Esq., attorney for Third Party Defendant
Peter Seideman, Esq., attorney for Plaintiff
O'Melveny & Myers, LLP, attorneys for Defendant and Third Party Plaintiffs
SF/mp
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
