A good reminder about complying with discovery demands in litigation

Posted on August 17, 2022 by Richard Klass

Gorbatov v Tsirelman, 206 AD3d 887, 889-90 [2d Dept 2022] is a good reminder about complying with discovery demands in litigation, The court held:

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed’ ” (Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019, 973 N.Y.S.2d 791, quoting CPLR 3126). “If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided …, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042[d]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v. Dicerbo, 166 A.D.3d 838, 839, 88 N.Y.S.3d 235). “The drastic remedy of striking a pleading is appropriate when there is a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d 1021, 1022, 149 N.Y.S.3d 217; see CPLR 3126[3]; Gafarova v. Yale Realty, LLC, 174 A.D.3d 862, 863, 106 N.Y.S.3d 122). Moreover, “[t]he willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813, 815, 144 N.Y.S.3d 81 [internal quotation marks omitted]; see Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d at 1022–1023, 149 N.Y.S.3d 217).

Here, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint upon finding, inter alia, that the plaintiffs’ repeated disregard of the defendants’ demands for discovery and bills of particulars, the plaintiffs’ failure to provide responses to the demands despite having participated in discovery conferences wherein they stipulated to provide such responses, the plaintiffs’ inadequate responses when they did respond, and the absence of an adequate excuse for these failures constituted willful and contumacious behavior (see Sparakis v. Gozzer Corp., 177 A.D.3d 1011, 1012–1013, 113 N.Y.S.3d 272; Williams v. Suttle, 168 A.D.3d 792, 793–794, 91 N.Y.S.3d 447).

Contrary to the plaintiffs’ contention, the length of the demands for bills of particulars did not, in and of itself, make the demands oppressive or burdensome, especially in light of the length and generality of the complaint (see Singh v. Kalish, 153 A.D.2d 621, 624, 544 N.Y.S.2d 654; Malan Constr. Corp. v. Allis–Chalmers Mfg. Co., 35 A.D.2d 788, 788–789, 315 N.Y.S.2d 258). Further, to the extent that the defendants’ demands sought amplification of the complaint, they were proper (see Singh v. Kalish, 153 A.D.2d at 624, 544 N.Y.S.2d 654; Malan Constr. Corp. v. Allis–Chalmers Mfg. Co., 35 A.D.2d at 788–789, 315 N.Y.S.2d 258).

The Supreme Court also properly rejected the plaintiffs’ proffered justification that they could not respond to the defendants’ demands without the defendants’ production of the plaintiffs’ files. Although this Court recognized in a prior determination of appeals in this action that certain facts essential for the plaintiffs to make more specific allegations were in the possession of the defendants (see Gorbatov v. Tsirelman, 155 A.D.3d 836, 839, 65 N.Y.S.3d 71), the plaintiffs failed to demand such discovery until September 2018—almost a year after this Court issued that determination and months after the defendants had filed their separate motions, inter alia, to strike the complaint. The plaintiffs’ demand was made more than two years after the Tsirelman defendants’ demands, more than three years after Kucherovsky’s demands, and months after the issuance of the January 2018 and May 2018 orders directing compliance with the defendants’ demands. Moreover, the plaintiffs never moved to compel the disclosure and did not provide the defendants with any documentary disclosure at all.

Under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint (see Sparakis v. Gozzer Corp., 177 A.D.3d at 1012–1013, 113 N.Y.S.3d 272; Williams v. Suttle, 168 A.D.3d at 793–794, 91 N.Y.S.3d 447).

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

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“Whatcha Got There?!” City Marshal’s poundage fee due

Posted on July 18, 2022 by Richard Klass

The plaintiff sued the defendant on his personal guaranty of a note and recovered a $1 million judgment against him. The plaintiff-creditor issued an execution to the New York City Marshal, who then levied on the defendant-debtor’s financial account. The creditor, debtor and City Marshal stipulated that an appeals bond would be filed pending the debtor’s appeal of the judgment and the account would be released to the debtor.

Subsequently, the debtor lost his appeal. The creditor and debtor agreed between themselves for the judgment to be assigned to an entity belonging to the debtor. At the same time, the mortgage in favor of the creditor on the debtor’s property upon which the judgment was based was refinanced with a new lender.

The debtor claimed that, due to the refinance of the mortgage, the judgment was no longer enforceable. Further, the debtor claimed that he did not owe the City Marshal his levy and poundage fees since the restraint of the account was released and the City Marshal did not “earn his poundage pursuant to CPLR 8012.”

For those who are unfamiliar with the work of City Marshals, New York City Marshals carry out almost all of the same tasks as Sheriffs, including evicting tenants, towing cars, seizing businesses and levying on bank accounts. However, unlike Sheriffs, City Marshals aren’t elected to office, aren’t government officers who get paid salaries, and they make their income from fees and a percentage of moneys collected through their enforcement duties.

City Marshal seeks his statutory and poundage fees.

According to CPLR 8012, a New York City Marshal is entitled to certain fees in connection with the enforcement of a judgment, including poundage fees.¹ The City Marshal retained Richard A. Klass, Esq., Your Court Street Lawyer, to file a motion to intervene into the action in order to seek an award of the levy and poundage fees.

Assignment of Judgment does not vitiate liability for fees.

The City Marshal argued that he was entitled to his fees despite assignment of the judgment — the appeal filed by the debtor was determined and he lost; the levy remained intact; and the City Marshal was duly authorized to continue with enforcement of the judgment as before the appeal.

In Solow Mgt. Corp. v Tanger, 10 NY3d 326, 331 [2008], the NYS Court of Appeals held:

We agree with the Appellate Division that the filing of an appeal bond pursuant to CPLR 5519 did not require vacatur of the marshal’s levy but only requires that all enforcement actions be temporarily stayed until there has been a determination as to the merits of the appeal. Indeed, if the [debtors] lost their appeal, the marshal’s levy would still be intact and he would be free to complete the collection process.

In this case here…

In this case, the debtor posted an appeals bond, which was stipulated by the parties (and so-ordered by the court) to include payment of the City Marshal’s fees. In Solow Mgt. Corp. v Tanger, the court specifically opined that such a stipulation of the parties and marshal would protect the marshal’s fees, holding: “Certainly a stipulation, signed by both parties and the marshal, to vacate the levy could have protected the marshal’s rights.”

As stated in Nash v Port Auth. of New York and New Jersey, 192 AD3d 482, 485 [1st Dept 2021]:

Where the collection process has been commenced but has not been completed a marshal may still be entitled to poundage fees when: (1) there is a settlement made after a levy by virtue of service of an execution; (2) even if the execution is set aside, vacated or discharged (CPLR 8012[b][2],[3]) or (3) where there has been an affirmative interference with the collection process preventing the marshal from collecting the assets through some affirmative action. The party that interferes with the collection process may be held responsible for payment of the poundage fees (Cabrera v. Hirth, 87 A.D.3d 844, 848, 928 N.Y.S.2d 706 [1st Dept. 2011]). This third rule was judicially created (Solow Mgt. Corp. v. Tanger, 10 N.Y.3d 326, 330–331, 858 N.Y.S.2d 63, 887 N.E.2d 1121 [2008]).

In Seymour Manufacturing Company v. Tarnopol, 20 Misc.2d 210, 212 [Sup. Kings 1959], the creditor and debtor concocted the same scheme to deprive the marshal of his fees — assigning the judgment to the debtor. The judge specifically found that “the assignment of the judgment constituted a settlement within the meaning of subdivision 7 since it may be fairly inferred … that the judgment was assigned with the view of defeating the garnishee execution and thus benefiting the judgment debtor.”

In Cabrera v. Hirth, 87 AD3d 844, 849 [1st Dept 2011], the court stated that: “It has long been customary that where a sheriff levies against defendant’s property and the matter is thereafter settled, the judgment creditor is liable to the sheriff for the payment of poundage fees as the party who invoked the sheriff’s services.” Further, in Martin v Consol. Edison Co. of New York, Inc., 177 AD2d 548 [2d Dept 1991], the court held that the judgment debtor was liable to sheriff for poundage fees for its affirmative interference with sheriff’s collection efforts.

In Thornton v Montefiore Hosp., 117 AD2d 552, 553 [1st Dept 1986], the court held the judgment debtor liable for poundage despite its failing argument that the sheriff did not collect any money on the execution, holding:

Montefiore argues that the Sheriff’s right to poundage is limited to those instances where he has “collected” money by virtue of an execution (CPLR § 8012(b)[1] ) and since, admittedly, he has collected nothing, and this case does not come within the specific, exceptional situations provided for in CPLR § 8012(b)[2], he is not entitled to a poundage fee simply for levying on Montefiore’s bank accounts. This argument, appealing as it may be, is without merit since it has been held that affirmative action which actively interferes with the Sheriff’s collection process is tantamount to collection. (Personeni v. Aquino, 6 N.Y.2d 35, 187 N.Y.S.2d 764, 159 N.E.2d 559; Flack et al v. State of New York, 95 N.Y. 462; Campbell v. Cothran, 56 N.Y. 279; Matter of Standardbred Owner’s Assn. (Yonkers Raceway), 44 Misc.2d 37, 252 N.Y.S.2d 969.) By promising to post an appeal bond if its accounts were released the same day upon which they had been levied, thereby “creating a fund as an undertaking from which the judgment could be satisfied” (id. at 38, 252 N.Y.S.2d 969), and independently promising to pay the poundage in exchange for the parties’ acquiescence to its importunings, Montefiore affirmatively interfered with the Sheriff’s collection process, entitling him to poundage.

City Marshal’s entitlement to attorney’s fees

CPLR 8012(b)(5) provides that a court may award reasonable attorney’s fees to the City Marshal when seeking to collect his statutory fees. As discussed in Arcamone-Makinano v Britton Prop., Inc., 65 Misc 3d 549, 557 [Sup Ct 2019], a City Marshal may pursue his attorney’s fees in the action without commencing a plenary action. In the decision, the court opined that, “there is case law holding that the marshal need not bring a plenary action in order to enforce his rights under CPLR 8012. (See Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d 756, 758 [Sup Ct, Kings County 1990], affd 177 AD2d 548 [2d Dept 1991].) As noted by the trial court in Martin, given that “[t]he party to be charged the poundage is already a party to the lawsuit and the enforcement of the money judgment is conducted within the framework of the predicate action,” a plenary action is not required. (Id.) The court concludes that the marshal’s request in the present case is procedurally proper.”).

In this case here…

The City Marshal has been forced to bring the within motion to protect his rights in the property levied upon to the extent of his statutory fees. Given the scheming between the plaintiff and defendant to avoid payment of the City Marshal’s fees, both of them should be properly charged with paying reasonable attorney’s fees.

Judge declares that the attempt to avoid the City Marshal’s fees fails because at least one and possibly all three exceptions apply.

In the case here, the judge found that the City Marshal was entitled to receive his poundage fee as per statute even though he did not actually collect the money under the circumstances.

The judge held that:

The court is convinced that one — perhaps more (or maybe even all) — of the exceptions apply here. Despite the lifting of the restraints, the Marshal’s post-execution right to poundage was protected by the parties’ stipulation as the execution here was ‘vacated or set aside.’ The Marshal was directed to execute, did so and the only reason the restraint was lifted in connection with the ultimately affirmed judgments was defendant’s bond — provided pursuant to a stipulation of the parties signed by the Marshal — which specifically included a commitment by defendant to pay any poundage due. This is not a case where the Marshal unilaterally released the assets; rather, execution was vacated or set aside based on a stipulated agreement.

The judge directed that the City Marshal was further entitled to his attorney’s fees and directed that a hearing on the amount of fees be scheduled. Once the decision came down, the debtor settled with the City Marshal and paid his levy and poundage fees.

End Notes

1 § 8012. Mileage fees, poundage fees, additional compensation, and limitation on compensation of sheriffs

(b) Poundage fees.

A sheriff is entitled, for collecting money by virtue of an execution, an order of attachment, or an attachment for the payment of money in an action, or a warrant for the collection of money issued by the comptroller or by a county treasurer or by any agency of the state or a political subdivision thereof, or for collecting a fine by virtue of a commitment for civil contempt, to poundage of, in the counties within the city of New York, five per cent of the sum collected and in all other counties, five per cent upon the first two hundred fifty thousand dollars collected, and three per cent upon the residue of the sum collected.
Where a settlement is made after a levy by virtue of service of an execution, the sheriff is entitled to poundage upon the judgment or settlement amount, whichever is less. Where an execution is vacated or set aside after levy, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the execution, and the court may order the party liable therefor to pay the same to the sheriff.
Where a settlement is made, either before or after judgment, after a levy by virtue of service of an order of attachment, the sheriff is entitled to poundage upon the judgment or settlement amount, whichever is less. Where an order of attachment is vacated or set aside after levy, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the order of attachment, and the court may order the party at whose instance the order of attachment was granted to pay the same to the sheriff. Where an order of attachment is otherwise discharged by order of the court, the sheriff is entitled to the same poundage, to be paid by the party at whose instance the order of attachment is discharged, and the sheriff is entitled to retain the property levied upon until the poundage is paid. The maximum amount upon which poundage shall be computed, if such a settlement is made or the order of attachment is vacated or set aside, is one million dollars.
Where a settlement is made (i) after service of an income execution upon the debtor pursuant to subdivision (d) of section fifty-two hundred thirty-one of this chapter or upon the garnishee pursuant to subdivision (e) of section fifty-two hundred thirty-one of this chapter, or (ii) after issuance of a property execution pursuant to section fifty-two hundred thirty of this chapter and levy against personal or real property pursuant to section fifty-two hundred thirty-two or fifty-two hundred thirty-five of this chapter, the sheriff is entitled to poundage upon the judgment amount or settlement amount, whichever is less. Where an income or property execution is vacated or set aside after levy, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the amount specified in the execution, and the court may order the party liable therefor to pay the same to the sheriff.
A sheriff who brings an action in a court of competent jurisdiction to collect such amount provided for in this subdivision may also be awarded reasonable attorney’s fees and court costs.

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Brooklyn Bar Association welcomes new president, ‘Court Street Lawyer’ Richard Klass

Posted on July 14, 2022 by Richard Klass

The Brooklyn Paper recently ran a story about Richard Klass’ induction as the new President of the the Brooklyn Bar Association. The article was enjoyable to read and provided a quick summary of what was an entertaining event.

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Brooklyn Bar Association marches in Brooklyn Pride Parade

Posted on July 14, 2022 by Richard Klass

The Brooklyn Paper recently ran a story about Richard Klass’ and the Brooklyn Bar Association’s participation in the Brooklyn Pride Parade on June 11, the first since the pandemic started. Christina Golkin, second vice president of the Brooklyn Bar Association and co-chair of the group’s LGBTQ+ committee, expressed her pleasure at seeing so many bar association members, including members of the executive board and judges from various courts.

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Defendants did not act in their capacities as attorneys when they allegedly made deceitful statements.

Posted on July 12, 2022 by Richard Klass

In Altman v DiPreta, 204 AD3d 965, 968-69 [2d Dept 2022], the court dismissed the cause of action brought under Judiciary Law Section 487, holding:

Under Judiciary Law Section 487(1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “Judiciary Law Section 487 ‘applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney’ ” (Pinkesz Mut. Holdings, LLC v. Pinkesz, 198 A.D.3d 693, 698, 156 N.Y.S.3d 216, quoting Oakes v. Muka, 56 A.D.3d 1057, 1058, 868 N.Y.S.2d 796). Here, the parties’ evidentiary submissions demonstrated that the DiPreta defendants did not act in their capacities as attorneys when they allegedly made deceitful statements. Accordingly, the Supreme Court properly granted that branch of the DiPreta defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law Section 487 insofar as asserted against them by Charles (see Smallwood v. Lupoli, 107 A.D.3d 782, 784, 968 N.Y.S.2d 515; Crown Assoc., Inc. v. Zot, LLC, 83 A.D.3d 765, 768, 921 N.Y.S.2d 268; Oakes v. Muka, 56 A.D.3d at 1058, 868 N.Y.S.2d 796).

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Richard A. Klass Inducted as President of the Brooklyn Bar Association, June 13, 2022

Posted on June 28, 2022 by Richard Klass

Play Video

Induction of Newly Elected Officers and Trustees of The Brooklyn Bar Association on Monday, June 13, 2022

Program

Welcome

Hemalee Patel, Esq.
Master of Ceremonies
General Counsel at NYC Board of Elections

National Anthem

Hon. Claudia Daniels-DePeyster
Kings County Criminal Court

Introductory Remarks

Hon. Barry Kamins
Past President
Brooklyn Bar Association

Remarks

Steven D. Cohn, Esq.
Past President
Goldberg & Cohn

Sophia A. Klass
Daughter

Stefano A. Filippazzo, Esq.
Retired Trustee
Law Office of Stefano A. Filippazzo, PC

Howard I. Elman, Esq.
Elman Freiberg PLLC.

Induction

By
Hon. Lawrence Knipel
Administrative Judge, Kings County Supreme Court, Civil Term

Class of 2025

Dean Delianites
Martin Edelman
Michael Farkas
Gregory LaSpina
Natoya McGhie
Margherita Racanelli
Scott Rynecki

Officers

Joseph S. Rosato, President Elect
Anthony W. Vaughn, Jr., First Vice President
Christina M. Golkin, Second Vice President
Daniel R. Antonelli, Secretary
Angélicque M. Moreno, Treasurer

President

Richard A. Klass

Closing Remarks

Richard A. Klass
President

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An attorney may not be held liable for failing to act outside the scope of a retainer

Posted on May 24, 2022 by Richard Klass

In Natl. Air Cargo, Inc. v Jenner & Block, LLP, 203 AD3d 1655 [4th Dept 2022], the court dismissed the legal malpractice action based on the following basis:

A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]). In support of its motion, HSE submitted the engagement letter between HSE and NAC. “An attorney may not be held liable for failing to act outside the scope of a retainer” (Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026, 1028, 93 N.Y.S.3d 353 [2d Dept. 2019]; see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 435, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007]). Here, HSE met its burden of establishing by documentary evidence that the scope of its legal representation did not include a review of the insurance policies for possible coverage of the judgment in the underlying action. The engagement letter stated that HSE’s engagement did “not include responsibility either for review of [NAC’s] insurance policies to determine the possibility of coverage for any … claims that have [been] or may be asserted against [NAC] or for notification of [NAC’s] insurance carriers concerning the matter.” Because review of NAC’s liability insurance policies to determine their potential applicability to the judgment in the underlying action fell outside the scope of HSE’s engagement, the court properly granted HSE’s motion with respect to the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145 [2d Dept. 2009]).

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Court reiterated the rule regarding the continuous representation doctrine.

Posted on May 18, 2022 by Richard Klass

In Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [2d Dept 2022], the court reiterated the rule regarding the continuous representation doctrine, holding:

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51), which accrues at the time the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183). “ ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56). “ ‘For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840, quoting Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 743, 5 N.Y.S.3d 297).

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[Don’t] Play It Again, Sam

Posted on May 12, 2022 by Richard Klass

In July 2012 (the “2012 Action”), the plaintiff filed suit in the Civil Court against Defendants. In the 2012 Action, the plaintiff sued for the following: “Action to recover the sum of $18,000, with interest thereon from January 1, 2009, based upon a) mistaken charge to [Plaintiff’s] credit card account by Defendants in the amount of $18,000.00, and Defendants’ failure and refusal to credit said charge back to Plaintiff; b) breach of contract; and c) unjust enrichment.”

In January 2020, after court orders marking the trial date “final,” the Civil Court Judge entered an Order dismissing the 2012 Action. At the hearing, the Court found that the plaintiff “had notice of [the] trial date since November of 2019” and thereafter denied the application for an adjournment of the trial.

Second Action Filed

In March 2021, the plaintiff commenced a new action in the Supreme Court (the “2021 Action”), asserting claims against the defendants relating to a dispute regarding specific charges on his account. He also asserted claims for unjust enrichment, conversion, breach of contract, breach of implied covenant of good faith, injunctive relief, intentional infliction of emotional distress, and declaratory relief. The plaintiff specifically asserted in the complaint that two sets of credit-card charges were erroneously paid, totaling approximately $18,000. In the 2021 Action, the plaintiff’s additional causes of action arose from a nucleus of operative facts that were identical to the ones adjudicated through judgment in the 2012 Action.

Doctrine of Res Judicata

The defendants retained Richard A. Klass, Esq., Your Court Street Lawyer, to move for dismissal of the 2021 Action based on the doctrine of res judicata. Pursuant to CPLR 3211(a)(5), a cause of action should be dismissed when it “may not be maintained” due to the doctrine of res judicata (also known as “claim preclusion”). In the 2021 Action, the complaint asserted claims for the transactions that had already been adjudicated in the 2012 Action. Under New York’s “transactional analysis approach to res judicata, ‘once a claim is brought to its 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.”’ In re Hunter, 4 N.Y.3d 260, 269 (2005).

It was pointed out that New York courts regularly dismiss actions under CPLR 3211(a)(5) based on the doctrine of res judicata. See, e.g., Board of Managers of the 129 Condominium, v. 129 Lafayette Street, LLC, 2012 N.Y. Slip Op 33349 at p. 11 (NY Sup. 2012) (granting motion to dismiss action under res judicata because the claims in both actions arose out of the “same transaction or series of transactions”); Douglas Elliman LLC v. Bergere, 98 A.D.3d 642, 642 (2nd Dept. 2012) (dismissing action pursuant to CPLR 3211(a)(5) based on the doctrine of res judicata); Corto v. Lefrak, 203 A.D.2d 94, 95 (1st Dept. 1994) (affirming dismissal of action based on res judicata and collateral estoppel); Paar v. Bay Crest Assoc., 35 N.Y.S.3 190 (2nd Dept. 2016) (doctrine of res judicata barred subsequent breach of contract action); Plaza PH2001 LLC v. Plaza Residential Owner LP, 947 N.Y.S.2d 498 (1st Dept. 2014).

Court looks at “Factual Grouping” of Claims

The fact that the plaintiff, in the 2021 Action, alleged additional causes of action — relative to the 2012 Action — did not alter the res judicata analysis: “When alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single ‘factual grouping’…, the circumstances that the theories involve materially different elements of proof will not justify presenting the claim by two different actions.” SSJ Development of Sheepshead Bay I, LLC v. Amalgamated Bank, 2014 N.Y. Slip Op. 30913 at p. 5 (NY Sup. 2014). Additionally, “[i]f the party against whom res judicata is invoked had a full and fair opportunity to litigate the claim in a prior proceeding based on the same transaction, but did not raise it therein, he will be barred from raising it in a subsequent action.” Schwartzreich v. E.P. Carting Co., 688 N.Y.S.2d 370, 441 (1st Dept. 1998). The rule applies not only to claims actually litigated, but also to claims that could have been raised in the prior litigation. O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357-58 (1981).

Second Action Dismissed

The Supreme Court Justice granted the motion to dismiss the 2021 Action. In his decision, the judge held: “The Court observes that the doctrine [of res judicata] ‘precludes litigation of matters that could or should have been raised in a prior proceeding between the parties arising from the same factual grouping, transactions or series of transactions.’ (see, DeSanto Construction Corporation v. Royal Insurance Company, 278 AD2d 357 [2^nd Dept. 2000].”

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The court retains the discretion to accept late opposition papers.

Posted on April 4, 2022 by Richard Klass

In Wilson v Tully Rinckey PLLC, 200 AD3d 1466 [3d Dept 2021], the court first addressed the issue as to the court’s discretion to accept late opposition papers on a motion. The court held:

Defendant contends that Supreme Court erred in permitting plaintiff to submit late opposition papers to the motion. We disagree. The court retains the discretion to accept late opposition papers upon a showing of a valid excuse (see Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1130, 967 N.Y.S.2d 432 [2013]; see generally CPLR 2004). As the court noted, plaintiff explained that the delay in submitting timely opposition was due to serious medical and health reasons of plaintiff’s counsel. Also taking into account the lack of prejudice to defendant, the fact that defendant was given the opportunity to submit a reply (see Heath v. Normile, 131 A.D.3d 754, 756, 15 N.Y.S.3d 509 [2015]) and the policy of resolving cases on the merits (see Associates First Capital v. Crabill, 51 A.D.3d 1186, 1188, 857 N.Y.S.2d 799 [2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]), the court providently exercised its discretion in accepting plaintiff’s late opposition (see Matter of Burkich, 12 A.D.3d 755, 756, 785 N.Y.S.2d 137 [2004]; Whiteford v. Smith, 168 A.D.2d 885, 885, 564 N.Y.S.2d 806 [1990]).

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