McDonald v Whitney Highland Homeowners' Assn., Inc
Annotate this CaseDecided on August 30, 2016
Supreme Court, Monroe County
Terri A. McDonald, Plaintiff,
against
Whitney Highland Homeowners' Association, Inc., CROFTON ASSOCIATES, INC., Defendants.
2016/06251
APPEARANCES:
Attorney for Plaintiff:
Frank G. Montemalo, Esq.
Law Office of Frank G. Montemalo, PLLC
36 West Main Street, Suite 500
Rochester, New York 14614
Attorney for Defendants:
Ryan J. McDonald, Esq.
Osborn, Reed & Burke, LLP
45 Exchange Blvd., 4th Floor
Rochester, New York 14614
Thomas A. Stander, J.
The Defendants, Whitney Highland Homeowners' Association, Inc. and Crofton Associates, Inc. ("Whitney"), submit a motion seeking an order dismissing Plaintiff's complaint pursuant to CPLR §3211[a][4] and §3211[a][5], with prejudice per CPLR §3211[c]; an order granting sanctions against Plaintiff and counsel for engaging in frivolous conduct; and costs and disbursements of this motion.
The Plaintiff, Terri A. McDonald, commenced this action by filing a complaint on June 6, 2016, which asserts a claim for damages caused by the negligence of the Defendants in maintaining, servicing and repairing the drainage system of her home. Plaintiff claims that the [*2]negligent maintenance caused mold throughout the interior which caused her personal injuries. Plaintiff asserts that the flooding occurred on June 17 and July 3, 2013, and that she continued to live at the premises until September 2013.
I. PROCEDURAL ISSUES
The Plaintiff previously commenced another action against the same Defendants, under Monroe County Index No. 2013/13589. The Defendants brought separate motions in both this action and the prior 2013 action seeking to dismiss the Plaintiff's complaint. The Plaintiff, however, submitted the same set of papers in opposition to both motions.[FN1] In the opposition papers the Plaintiff has narrowed her claims.
Counsel for the Plaintiff states in his Attorney Affidavit in opposition that "[i]t is Plaintiff's position herein that her theory of liability in both actions is based upon a negligent maintenance theory as expressly alleged in Plaintiff's Second Cause of Action"[FN2] (Attorney Affidavit of Frank G. Montemalo, Esq., ¶30 [8-9-2016]). Further counsel sets forth that the prior action requests damages for property damage, while this 2016 action seeks damages for personal injury (Id. at ¶4).
At oral argument before the Court, counsel for the Plaintiff clarified her current claims in the prior 2013 action. The First Cause of Action for negligent construction and the Fourth Cause of Action for asbestos damage were withdrawn by Plaintiff's counsel. The Attorney for Plaintiff also conceded that the Third Cause of Action for mold damages and the Fifth Cause of Action for additional living expenses were not separate causes of action, but instead were types of damages being claimed. The Sixth Cause of Action for vacating judgments and liens was not mentioned in these motion papers and Plaintiff's counsel stated the issues were resolved.
To clarify the outstanding claims in the prior 2013 action, based upon the representations of the attorney for the Plaintiff in Court, the first and fourth causes of action were withdrawn by Plaintiff and thus were dismissed. The third and fifth causes of action were dismissed as separate claims, but remain as types of claimed damages. The sixth cause of action was resolved and is dismissed. The only remaining cause of action in the prior action is the Second Cause of Action for negligent maintenance. The only cause of action in the instant 2016 action is for negligent maintenance.
II. MOTION TO DISMISS
The Defendants seek to dismiss this action on the ground that "there is another action pending between the same parties for the same cause of action"(CPLR Rule 3211[a][4]). This statute specifically provides the Court with broad authority: "the court need not dismiss upon this [*3]ground but may make such order as justice requires" (Id.). The Defendants seek to dismiss this action by the Plaintiff, based upon another action pending by the Plaintiff against the same Defendants which alleges the same facts and circumstances. Defendants also assert that the statute of limitations has expired on the actionable wrong alleged by Plaintiff.
The prior action under Monroe County Index No. 2013/13589 is against the exact same parties, alleges the same cause of action for negligent maintenance, and is based on the same actionable wrong consisting of the flooding occurrence. The attorney for Plaintiff states that "her theory of liability in both actions is based upon a negligent maintenance theory" (Attorney Affidavit of Frank G. Montemalo, Esq., ¶30 [8-9-2016]). The Plaintiff claims the actionable wrong occurred when flooding occurred on June 17, 2013 and July 3, 2013. The only difference is the damages requested: Counsel sets forth that the prior action requests damages for property damage, while this 2016 action seeks damages for personal injury (Id. at ¶4).
The Courts have set forth the reasoning to assess whether the claims are for the same cause of action: In determining whether two causes of action are the same, we consider (1) [whether] both suits arise out of the same actionable wrong or series of wrongs [] and (2) as a practical matter [whether] there [is] any good reason for two actions rather than one being brought in seeking the remedy (citations omitted). (Red Barn Country, LLC v Hafner, 120 AD3d 1537,1538 [4th Dept. 2014]).
The causes of action set forth in the two pending actions arise out of the exact same actionable wrong or series of wrongs. Both cases are based upon negligent maintenance by the Defendants allegedly causing flooding to the Plaintiff's premises. As a practical matter there is no good reason for these two actions, one for property damage and one for personal injuries, to have been brought in separate actions. Further, the motion for summary judgment brought by Defendants in the prior 2013 action was granted based upon the grounds that there was no evidence presented raising a triable issue of fact on the cause of action for negligent maintenance and the complaint was dismissed.
Under CPLR Rule 3211[a][4] the Court may dismiss this action, or make such order as justice requires. The cause of action in the instant personal injury action is based on the exact same actionable wrong consisting of negligent maintenance. There is no basis for this personal injury to proceed. The motion of the Defendants to dismiss this action on the grounds that there is another action pending between the same parties is GRANTED. The Complaint of the Plaintiff is DISMISSED.
The Defendant's motion to dismiss based upon the statute of limitations is not reached by this Court.
III. SANCTIONS
The Defendants also request an order granting sanctions against Plaintiff and counsel for engaging in frivolous conduct; and for costs and disbursements of this motion. The Defendants fail to present sufficient evidence and facts to warrant sanctions against the Plaintiff; or for the award of costs and disbursements. The motion of the Defendants for sanctions and for costs and disbursements on this motion are DENIED.
SUBMIT ORDER
Counsel for the Defendants, Whitney Highland Homeowners' Association, Inc. and Crofton Associates, Inc., shall submit an Order, with this Decision attached, upon approval of all Counsel.
Dated: August 30, 2016
Rochester, New York
____________________
Thomas A. Stander
Supreme Court Justice Footnotes
Footnote 1:A copy of the Plaintiff's affidavits in opposition will be filed with this Decision. The originals will be filed under Monroe County Index No. 2013/13589.
Footnote 2:The second cause of action referred to is in the Complaint of the prior action, under Index #2013/13589, and it is for negligent maintenance.
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