Chin v. Interboro Petroleum Transporter, Inc.

• Decision Date: 07 July 2010
• Citation: 907 N.Y.S.2d 536,28 Misc.3d 78
• Parties: Dan CHIN, Appellant, v. INTERBORO PETROLEUM TRANSPORTER, INC., Respondent.
• Court: New York Supreme Court — Appellate Term

907 N.Y.S.2d 536 28 Misc.3d 78 Dan CHIN, Appellant, v. INTERBORO PETROLEUM TRANSPORTER, INC., Respondent. Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts. July 7, 2010.

Dan Chin, appellant pro se.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for respondent.

Present: STEINHARDT, J.P., PESCE and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 23, 2009. The order granted defendant's motion to dismiss the action pursuant to CPLR 3211(a)(5) and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

Plaintiff, allegedly a co-owner of an automobile involved in an accident with defendant's truck, brought the instant small claims action to recover for damage to the automobile. Defendant moved to dismiss the action pursuant to CPLR 3211(a)(5), alleging that Maria Gonzalez, an owner of the automobile, had previously brought a small claims action against it to recover for damage sustained to the vehicle in the same accident, and that judgment had been entered, pursuant to an arbitrator's award, in favor of Gonzalez. In this action, plaintiff alleges that he is seeking damages for "loss of use and expenses."The Civil Court granted defendant's motion and dismissed the instant action.

It is well settled that "[r]es judicata bars future litigation between the same parties, or those in privity with the parties, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in a prior proceeding" ( Matter of Edward Joy Co. v. Hudacs, 199 A.D.2d 858, 859, 606 N.Y.S.2d 74 [1993]; see Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979]; Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277, 317 N.Y.S.2d 315, 265 N.E.2d 739 [1970]; Lazides v. P & G Enters., 58 A.D.3d 607, 609, 871 N.Y.S.2d 357 [2009] ). To establish privity between a party and a nonparty to a prior action, the connection between them "must be such that the interest of the nonparty can be said to have been represented in the prior proceeding" ( Green v. Santa Fe Indus., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 [1987] ).

CCA 1808 provides that a small claims judgment "may be pleaded as res judicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any facts at issue or found therein in any other action or court" ( Chorekchan v. Forman, 18 Misc.3d 127(A), 2007 WL 4355350 [App. Term, 2d & 11th Jud. Dists. 2007]; Omara v. Polise, 163 Misc.2d 989, 625 N.Y.S.2d 403 [App. Term, 2d & 11th Jud. Dists. 1995] ).In Omara, this court, quoting from ...