Samuels v Consolidated Edison Co. of N.Y., Inc.
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Samuels v Consolidated Edison Co. of N.Y., Inc. 2016 NY Slip Op 32845(U) August 16, 2016 Supreme Court, New York County Docket Number: 107142/04 Judge: Nancy M. Bannon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] I SUPREME COURT Of THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 42 ---------------~-----------------------X WILLIAM C. S~LS Plaintiff Index No. 107142/04 v DECISION AND ORDER CONSOLIDATED ED,ISON COMPANY OF NEW YORK, INC. Defendant. I [And Two ThirdlParty Actions] --------------i------------------------x NANCY M. BANNON, J.: I I I. INTRODUCTION i In this adtion to recover damages for injury to property, I the defendant I ~onsolidated Edison Company of New York, Inc. (Con Ed), moves purJuant to CPLR 4533-b to set off, from its own I i liability as d~termined by a jury, the sum of $1.1 million that I was recovered action. fY I the plaintiff from other parties in an unrelated The motion, although denominated as one pursuant to CPLR I 4533-b, is in actuality one for leave to reargue Con Ed's prior i motion pursuant to CPLR 4404(a) for judgment as a matter of law I dismissing the/complaint. The motion is denied as without merit, since the court has not misapprehended or overlooked any issue of I law or fact. S~e CPLR 2221(d). I In any event, even if Con Ed's I application were deemed a proper CPLR 4533-b motion, Con Ed has I not demonstratrd entitlement to relief under that statute I 1 [* 2] inasmuch as a jury, in finding for the plaintiff, has already determined the the damages awarded in this action were not the same as the damages awarded in the prior action and, thus, that I there is no basis for any set-off. II. BACKGROUND On July 9 2003, the plaintiff commenced an action (the I Fradkoff actio4> against architects Alex R. Fradkoff and Howard I I R. Goldin, as well as contractor Leithlong Construction I I (Leithlong), alleging architectural malpractice, breach of contract, unjuJt enrichment, and negligence, and seeking damages ! for allegedly improper design and construction in relation to the renovation of ~he plaintiff's I reference to the upper floors. townhouse, with particular That matter was settled on October 3, 2oot, for the total sum of $1.3 million, with Goldin I and his corporation contributing $1 million and Leithlong I contributing $100,000. I I On May 7,12004, while the Fradkoff action was pending, the I ' plaintiff commenced the instant action against Con Ed, alleging that Con Ed's hegligent maintenance of its facilities and conveyances caLsed significant flooding that damaged the basement ! l and a structural wall at his property. Plaintiff thus sought ! additional damrges in the sum of $500,000 from Con Ed. I Con Ed impleaded Fradkoff, Goldin, and Leithlong, seeking contribution, I I 2 [* 3] among other thipgs. In an order dated October 17, 2008, the supreme Court (Gische, J.), granted Goldin and Leithlong's motion I fhird-party complaint against them, to dismiss the concluding that documentary evidence, consisting of the settlement agreement in the Fradkof f action, provided a complete defense to the third-party acJion. Since the motion was not directed to the I plaintiff, he did not submit papers in connection with that I I motion. The court concluded that the settlement agreement .I "released • • Goldin and Leithlong from any and all claims I asserted in th~ main action, namely, plaintiff's damages arising out of the flodding and resulting damage in the basement of the I premises." The court noted that Con Ed had argued, contrary to I the position it now urges, that the damages recovered in the Fradkof f actiol were different than those sought by plaintiff in this action. I It nonetheless rejected Con Ed's argument, I concluding thaf "the plain language of the settlement agreement makes it clear1that the damages pertaining therein are one and the same as those alleged in the underlying complaint." No I appeal was tak~n from that order. ! On June li, 2010, the court (Gische, J.) granted Con Ed's I oral applicatibn to dismiss the complaint against it in this I action. i In the so-ordered transcript memorializing both the oral ! argument and t~e court's determination, Con Ed argued for the I first time I tha~ the damages recovered by plaintiff in the I 3 [* 4] Fradkof f action and those sought in this action were one and the 1 same, while plaintiff maintained that none of the damages recovered in th~ Co~ sought from basement and Fradkof f action compensated him for damages now Ed, which arose from water infiltration in the d~mage to a structural wall. Plaintiff argued that I the $1.3 million settlement of the Fradkoff action was a "carve I out" of the fu]l measure of damages, which were allegedly caused ! by different premises. d~fendants to different portions of the subject Thelcourt concluded that Goldin and Leithlong's I payments were for "identical damages that [plaintiff is] claiming l in this action1" and that since plaintiff recovered the entirety I of his damages) he could not proceed against Con Ed. I In a decision and order dated June 28, 2012, the Appellate Division, Firsi Department, reversed the order dated June 11, 2010, holding ihat Con Ed's oral application was actually a late motion for surnJiary judgment, and that the Supreme Court should I not have entertained it. See Samuels v Consolidated Edison Co. I of N.Y .. Inc.,196 AD3d 685 (1st Dept 2012). Con Ed thereafter moved pursuant to CPLR 321l(a) to dismiss ! the complaint, arguing that, since plaintiff sought only $500,000 1 from it in this action, while he had already collected $1.3 I million in set~ling the Fradkoff action, and, in its view, the I damages sought/ were the same, plaintiff had already recovered all potential damages, excusing Con Ed from liability. ! I 4 [* 5] In an order dated April 11, 2014, the Supreme Court {Silver, J.) denied the motion, concluding that, however characterized, a late the motion was successive motion for summary judgment, and I that the Appellate Division had already determined that such·a late motion could not be entertained. In an order dated December 23, 2014, the lourt (Silver, J.) denied Con Ed's motion for leave to reargue. I The actiorl proceeded to a jury trial before this court. In a motion datedloctober 27, 2015, denominated as one in limine, Con Ed moved to preclude plaintiff from adducing proof of damages against it, arJuing that the law of the case doctrine barred plaintiff from seeking any such damages, inasmuch as it had already been determined, in the order dated June 11, 2010, that I the proceeds of the settlement in the Fradkof f action were the same damages slught by plaintiff against Con Ed in this action. I i This court denied the motion, concluding that, inasmuch as the i order dated June 11, 2010, was reversed, that order, and all I conclusions ofilaw set forth therein, were nullities, and that, contrary to th~ reasoning undergirding that order, it was for the I jury to decidelwhether the damages sought and recovered in the i Fradkof f actioh arose from different incidents and were incurred I by different pbrtions of plaintiff's property than those sought I I in the instantj action against Con Ed. After pla~ntiff's I opening, Con Ed moved pursuant to CPLR I 5 [* 6] 4401 for judgment as a matter of law, on the same ground, and this court denied the motion. Con Ed again moved pursuant to CPLR 4401 at the close of plaintiff's case, on the same ground, and this court again denied the motion. At trial, Icon Ed adduced no evidence in its defense. This i court granted the motions of the remaining third-party defendants pursuant to CPLR 4401 for judgment as a matter of law, since Con Ed, as the thirp-party plaintiff, adduced no evidence in support of its third-pa~ty claims. The jury awarded plaintiff the sum of I $477,514.42. Cfn Ed then moved pursuant to CPLR 4404(a) for judgment as a nftter of law dismissing the complaint, I relying on the /law of the case doctrine. again This court denied the I motion. III. DISCUSSION I I Con Ed now seeks, for the seventh time, to invoke the law of the case doctrine so as to give force and effect to the order I dated June 11, /2010, in which the motion court concluded that the damages soughtlin the Fradkoff action were the same as those sought here. I eon Ed denominates its motion as one pursuant to I CPLR 4533-b to/set off the $1.l million recovered from Goldin and Leithlong in the Fradkoff action. I I The motion is, however, actually a motton for leave to reargue Con Ed's motion pursuant I I 6 [* 7] to CPLR 4404(a), as it invokes the same argument as a basis for the same ultimate relief (see CPLR 222l[d]; Basile v Wiggs, 117 I I AD3d 766 (2nd D~pt 2014); Lux v R & R Mobile Home Park, 291 AD2d 482 [2nd Dept 2002]}, and may be denied on that ground, since this court did not overlook or misapprehend any issues of law or fact in denyin~ Con Ed's motion pursuant to CPLR 4404(a}. I To the extent that Con Ed's motion may be deemed a proper motion for a set-off pursuant to CPLR 4533-b, the court rejects Con Ed's argumJnt that application of the law of the case ! doctrine mandates such a set-off. Con Ed evinces a fundamental misunderstandilg of the doctrine of law of the case. I Upon i reversal, the trder dated June 11, 2010, and any reasoning upon which it was premised, became a nullity and of no effect. I See Matter of CitylQf New York, 216 NY 489, 493 (1916); Amo v Little I Rapids Coz:p., 268 AD2d 712, 718 (3rd Dept 2000); Kramer v J. J. I G. Trucking Co~., 47 AD2d 647 (2~ Dept 1975). case doctrine ~s nThe law of the a rule of comity and convenience which states that ordinaril~ a court of coordinate jurisdiction should not I disregard an e~rlier decision on the same question in the same ! case." Al;)e v New York Univ., 139 AD3d 416, 416 (1st Dept 2016}, quoting Tenzer[ Greenblatt. Fallon & Kaplan v Capri Jewel:c:y, 128 I AD2d 467, 469 ;c1st Dept 1987). The doctrine "applies only to I issues decided~ I of the action.f directly or by implication, at an earlier stage Metropolitan Package Store Assn. v Koch, 89 AD2d I 7 [* 8] 317, 321-322 (3ro Dept 1982). Where the earlier decision is reversed on appeal, there remains no issue that has been finally I determined in that decision by a court of coordinate jurisdiction ! that may either be adopted or disregarded, and the doctrine is inapplicable to that decision (see Hunter Roberts Constr. Group, LLC v Travelers Indem. co., 2015 NY Slip I Op 32062[0], *25 [Sup r Ct, NY County 2015]), regardless of the grounds for reversal. Moreover, Goldin and Leithlong's motion to dismiss the third-party colplaint was directed only to Con Ed's third-party I complaint, and the conclusions set forth in the order dated June 11, 2010, were articulated solely in the context of that motion. That motion was determined solely on the contents of the settlement agrlement, without a hearing, and without any evidence I adduced as to the distinctions between the claims asserted in the two actions. I Thus, when the motion court first addressed the ! consequences of the settlement agreement in the context of Goldin I and Leithlong'~ motion, plaintiff did not have a full and fair I opportunity toladdress the issue of whether the damages sought in the Fradkoff action were identical to those sought here. I See - Roddy v Nederlander Producing Co. of Am., Inc., 15 NY3d 944, 946 (2010). This court, in determining the four separate trial motions herein described, was thus writing on a blank slate in regard to I the issue of the identity of the damages sought in the two I I I 8 [* 9] actions, concluding that there had been no prior binding I determination that the damages sought in the two actions were identical, and !that such would be an issue for the jury to decide. To the extent that Con Ed argues that the reasoning in the order dated June 11, 2010, is persuasive, and that this court I should have adqpted it notwithstanding the procedural posture in which its contJntions were presented, as well as its appellate I history, the cdurt rejects the argument. I It was clear both from the pleadings in the Fradkof f action and this action, and from I the evidence adduced at trial in this action, that the damages recovered in tJe Fradkof f action arose from different incidents I and were incurted by different portions of plaintiff's property than those invJlved in the instant action. I Indeed, ihe jury in this case was presented with detailed I contracts, invoices, and other proof delineating which incident I caused damage to which particular portion of plaintiff's I I townhouse, when each incident occurred, and which party or entity I was responsible for each incident, and rationally concluded, based on that ~vidence, that Con Ed's negligence caused flood I I I damage to the townhouse basement and a structural wall. In so I finding, the jury impliedly concluded that Con Ed's negligence I constituted anl occurrence discrete and apart from any negligence I and malpractic~ alleged in the Fradkoff action. Con Ed was given I 9 [* 10] the opportunity, to refute that evidence and demonstrate the identity of the, damages in this action and the Fradkoff action, but declined to! avail itself of that opportunity, electing to I adduce no evidence whatsoever in that regard other than the settlement agreement in the Fradkoff action. For these reasons, Con Ed's present arguments are unavailing. I IV. CONCLUSION I Accordingly, it is I I ORDERED that the motion of defendant Consolidated Edison I I Company of NewiYork, Inc., is denied. I I I This constitutes the Decision and Order of the court. I i FI LED I Dated: August 16, 2016 AUG 2 2 201& I 10
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