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Dismissal Under Doctrine of Res Judicata Affirmed

The Second Department affirmed the dismissal of the complaint under the doctrine of res judicata and succinctly explained the underlying principles:

“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . “The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims” … . Here, the plaintiff’s claims … arose out of the same series of transactions as those at issue in a prior action …, and were, or could have been, raised in that prior action, which was disposed of on the merits in an order of the Supreme Court … . Harris v City of New York, 2014 NY Slip Op 06945, 2nd Dept 10-15-14

 

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Criteria for Judicial Estoppel Not Met/Conversion Action Cannot Be Based Upon a Right To Payment

The Second Department determined that, although the criteria judicial estoppel had not been met and Supreme Court should not have dismissed the conversion cause of action on that ground, the court properly dismissed the conversion cause of action. The court explained that the mere right to payment cannot be the basis of conversion:

“Under the doctrine of judicial estoppel or inconsistent positions, a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” … . “The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'” … .

Here, the Supreme Court erred in, in effect, applying the doctrine of judicial estoppel as a ground for directing the dismissal of the second cause of action, which alleged conversion. The plaintiff’s allegations in a prior action entitled Barker v Hussain, commenced in the Supreme Court, Nassau County, under Index No. 6382/11, were neither sufficiently definite nor so clearly inconsistent with her current position in this action so as to warrant the application of the doctrine of judicial estoppel against her … . * * *

A cause of action alleging conversion should be dismissed when the plaintiff does not allege “legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff’s rights” … . “Moreover, the mere right to payment cannot be the basis for a cause of action alleging conversion since the essence of a conversion cause of action is the unauthorized dominion over the thing in question'” … . In other words, “[t]angible personal property or specific money must be involved” … . Barker v Amorini, 2014 NY Slip Op 06931, 2nd Dept 10-15-14

 

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Criteria for Setting Aside a Verdict As a Matter of Law and As Against the Weight of the Evidence Described

In affirming the denial of motions to set aside the verdict in a medical malpractice case, the Second Department explained the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence:

“A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … . * * *

Furthermore, “[a] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors'” … . We accord deference to the credibility determinations of the jury as factfinder, which had the opportunity to see and hear the witnesses … . Applying these principles to the facts of this case, the jury’s determination that the defendant departed from good and accepted nursing practice and that such departure was a proximate cause of the plaintiff[‘s] … injuries was supported by a fair interpretation of the evidence … . Messina v Staten Is Univ Hosp, 2014 Slip Op 06952, 2nd Dept 10-15-14

 

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Severance of Action Against Defendant Which Filed for Bankruptcy Proper

In a medical malpractice case, the Second Department determined Supreme Court properly severed the action against a defendant which had filed for bankruptcy from the actions against the other defendants.  Plaintiff was 86 years old and delaying the proceedings would therefore have prejudiced him:

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others” (CPLR 603).

Where a defendant in an action files for chapter 11 bankruptcy relief, the automatic stay provisions of 11 USC § 362(a) do not extend to the nonbankrupt defendants … . Therefore, in such circumstances, it is within the discretion of the trial court to direct a severance of the action as against the bankrupt defendant … . Generally, the balance of the equities lies with plaintiffs when severance is sought because the case against one defendant is stayed pursuant to 11 USC § 362(a), and that is particularly so in this personal injury action where a delay would be prejudicial to the plaintiffs … .

Here, as the prejudice to the 86-year-old injured plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 603 to sever the action … and directing the action to proceed against the remaining defendants … . Katz v Mount Vernon Dialysis LLC, 2014 NY Slip Op 06947, 2nd Dept 10-15-14

 

New York’s Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided

In an action concerning whether plaintiff owned an undivided half interest in property which had been encumbered by a mortgage without plaintiff’s participation, the Second Department determined the complaint was properly dismissed under the doctrine of res judicata because the issues had not been raised in a prior proceeding (even though the issues may have been wrongly decided in that proceeding).  The court explained the relevant legal principles, including New York’s transactional approach to res judicata:

Contrary to the plaintiff’s contention, the Supreme Court properly determined that the doctrine of res judicata precluded the plaintiff from asserting her current claims … . ” Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation'” … . Under New York’s transactional approach to res judicata, “once a claim is brought to a 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” … . “The rationale for the doctrine is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again; allowing relitigation would undermine the interest of the community and the litigants in finality” … . Indeed, “[t]he policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts” … .

Here, the Supreme Court properly granted the … defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that it was barred by the doctrine of res judicata. The … defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the plaintiff’s claims against them arose from the same operative facts and concerned the same property as the claim she raised against the … defendants in the 2007 action, which was decided on the merits. Moreover, the … defendants demonstrated that all of the claims asserted against them in this action were raised or could have been raised in the 2007 action. In opposition, the plaintiff failed to raise a triable issue of fact … . Myers v Myers, 2014 NY Slip Op 06805, 2nd Dept 10-8-14

 

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Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained

The Second Department determined Supreme Court should not have directed a verdict in favor of the plaintiff after a jury verdict in favor of the defendant.  The facts were such that the jury could have found fault on the part of the plaintiff and the defendant, but the jury could not have found the defendant was free from fault.  Therefore, the trial court should not have directed a verdict for the plaintiff, but rather should have found the verdict against the weight of the evidence and ordered a new trial.  The Second Department explained the different criteria for setting aside a verdict as a matter of law and setting aside a verdict as against the weight of the evidence:

CPLR 4404(a) provides, in relevant part, that: “[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence” (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards … . For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is “simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial” … . However, “[w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . ” When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view'” … . “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence” … . Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence … . Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it “leads to a directed verdict terminating the action without resubmission of the case to a jury” … . Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial … . Ramirez v Mezzacappa, 2014 NY Slip Op 06808, 2nd Dept 10-8-14

 

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Criteria for Setting Aside a Defense Verdict Not Met

The Fourth Department determined a verdict for the defense in a medical malpractice action should not have been set aside as against the weight of the evidence.  The court explained the criteria in the context of conflicting expert testimony:

“A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” … . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” …, and the trial court “should not set aside [a] verdict unless it is palpably irrational or wrong” … . * * *

“Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” …, and, unlike the trial court, we perceive no reason to disregard the testimony of defendants’ expert … . Lesio v Attardi, 2014 NY Slip Op 06705, 4th Dept 10-3-14

 

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Monetary Sanction Against Plaintiff’s Attorney and Striking of Complaint Deemed Appropriate Where Discovery Delays Unexplained

The Fourth Department determined a $2090.00 sanction against plaintiff’s attorney and the striking of the complaint in a slip and fall case were appropriate based upon plaintiff’s discovery delays:

…[W]e conclude that, under the circumstances, Supreme Court did not abuse its discretion in imposing sanctions on plaintiff’s attorney for what the court characterized as “excessive and inexcusable delay” in providing discovery responses … . …[W]e reject plaintiff’s contention that the court applied an incorrect legal standard in striking the complaint and dismissing [the action]. “[T]he type and degree of sanction [for a discovery violation] will be left to the discretionary authority of the trial court which will remain undisturbed absent an abuse thereof” … . “While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of [the court’s] discretion . . . , striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” … . Here, the court properly determined that defendant met its initial burden of establishing willful, contumacious or bad faith conduct by plaintiff, thereby shifting the burden to plaintiff to offer a reasonable excuse … . Allen v Wal-mart Stores Inc, 2014 NY Slip Op 06695, 4th Dept 10-3-14

 

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“Error In Judgment” Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence

In reversing Supreme Court, the Fourth Department determined the “error in judgment” jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:

We conclude that the court erred in granting that part of plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa’s alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa’s testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge … . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff’s postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff … . Furthermore, we conclude that “the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence” … . Beebe v St Joseph’s Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14

 

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In a Hybrid Action, the Causes of Action Seeking Money Damages Were Distinct from the Causes of Action Seeking Annulment of Town a Resolution/Four-Month Statute of Limitations Did Not Apply to Causes of Action Seeking Money Damages

The First Department determined that certain causes of action in a hybrid proceeding were not time-barred by the four-month statute of limitations for Article 78 proceedings. When the plaintiffs did not repair the property which was alleged to endanger a drinking water source, the town had the property repaired pursuant to a town resolution and a special tax assessment was imposed to pay for the repairs.  The plaintiffs brought a hybrid proceeding challenging the resolution and tax assessment and seeking damages for the destruction of plaintiffs’ property and the interruption of plaintiffs’ business. The causes of action seeking damages were not barred by the four-month statute:

In the fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, in effect, to annul the tax assessment referable to the cost of demolition of the retaining wall and rear wall of the building and the rebuilding of the retaining wall and, by implication, sought to annul the Resolution authorizing the demolition and the assessment against the property. They likewise contended that the Town failed to give them proper notice and an opportunity to be heard, as required by section 66-11. Since the substance of these causes of action was a challenge to administrative decisions and a special tax assessment, the court properly concluded that these causes of action constituted requests for relief pursuant CPLR article 78, regardless of the form in which they were pleaded … . * * *

The court erred … in granting those branches of the Town’s motion which were for summary judgment dismissing the first, second, third, and eighth causes of action. These causes of action assert claims, inter alia, for damages resulting from the destruction of a portion of the garage building and the interruption of the plaintiffs’ business. Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages as well as the annulment of a governmental determination, “[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he [or she] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (CPLR 7806). “[W]here the thrust of the lawsuit is the review of an adverse . . . agency determination, with the monetary relief incidental, [the] Supreme Court may entertain the entire case under CPLR article 78” … . “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Contrary to the Supreme Court’s determination, the claims asserted in the first, second, third, and eighth causes of action, in which the plaintiffs sought money damages, were not incidental to the plaintiffs’ CPLR article 78 challenges to the Resolution and the special tax assessment … . Therefore, these causes of action were not asserted in connection with the CPLR article 78 portion of this hybrid action/proceeding, and were not barred by the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217). Hertzel v Town of Putnam Val, 2014 NY Slip Op 06558, 2nd Dept 10-1-14

 

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