Dos Santos v. Rowser, 2007 NY Slip Op 30305(U) (N.Y. Sup. Ct. 3/13/2007)

• Decision Date: 13 March 2007
• Docket Number: 0009645.,Motion Cal. No: 10.
• Citation: 2007 NY Slip Op 30305
• Parties: ANSELMO DOS SANTOS and DIANE DASILVA, Plaintiffs, v. BOBBIE J. ROWSER, as Administrator of the Estate of CURTIS ROWSER a/k/a CURTIS JAMES ROWSER, Defendants.
• Court: New York Supreme Court

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2007 NY Slip Op 30305(U)

ANSELMO DOS SANTOS and DIANE DASILVA, Plaintiffs, v. BOBBIE J. ROWSER, as Administrator of the Estate of CURTIS ROWSER a/k/a CURTIS JAMES ROWSER, Defendants.

0009645.

Motion Cal. No: 10.

Supreme Court of the State of New York, Queens County.

March 13, 2007.

Motion Date: January 10, 2007.

PATRICIA P. SATTERFIELD, Judge

Upon the foregoing papers, it is ordered that the motion is resolved as follows:

This is an action for personal injuries arising from an automobile accident on May 1, 2002, between the vehicle operated by plaintiff Anselmo Dos Santos ("plaintiff') and the motorcycle operated by Curtis Rowser a/k/a Curtis James Rowser, Jr. ("decedent"), who was killed as a result of the accident and for whom defendant Bobbie J. Rowser was appointed as the representative of his estate. On April 20, 2003, a hearing was held, pursuant to section 510 of the Vehicle and Traffic Law of the State of New York, to investigate the fatal accident, which resulted in a finding that plaintiff violated section 1142(a) of the Vehicle and Traffic Law by failing to yield the right of way. Defendant, who advised her counsel of the hearing on June 29, 2006, now moves for an order granting leave to amend the answer to assert the affirmative defenses of collateral estoppel and res judicata as against plaintiff Anselmo Dos Santos, and for summary judgment solely as against that plaintiff, on the ground that he is collaterally estopped from re-litigating the issue of liability and proximate cause.

Defendant's Request for Leave to Amend its Answer

It is well settled that leave to amend or supplement pleadings "shall be freely given," unless the amendment sought is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from the delay in seeking the amendment. Adams v. Jamaica Hosp., 258 A.D.2d 604 (2^nd Dept.1999); East Patchogue Contr. Co. v. Magesty Sec. Corp., 181 A.D.2d 714 (2^nd Dept. 1992); Nissenbaum v. Ferazzoli, 171 A.D.2d 654 (2^nd Dept. 1991). See McCaskey, Davies & Assocs. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755 (1983); CPLR 3025(b). "'A court hearing a motion for leave to amend will not examine the merits of the proposed amendment "unless the insufficiency or lack of merit is clear and free from doubt. In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied' (citations omitted)." Ricca v. Valenti, 24 A.D.3d 647 (2^nd Dept. 2005). Here, defendant demonstrated that the proposed amendment has merit (see, Maloney Carpentry, Inc. v. Budnik, ___ A.D.3d ___, 2007 WL 466086 (2^nd Dept. 2007; Bajanov v. Grossman, 36 A.D.3d 572 (2^nd Dept. 2007), and as there can be no prejudice or surprise to plaintiff, the application is granted.

Defendant's Request for Summary Judgment

Defendant seeks summary judgment in her favor on the theory that the determination following the April 20, 2003 fatality hearing held by the Department of Motor Vehicles, pursuant to section 510 of the Vehicle and Traffic Law, which resulted in a finding that plaintiff violated section 1142(a) of the Vehicle and Traffic Law by failing to yield the right of way, estops plaintiff from re-litigating the issue of liability and proximate cause. "It is well settled that under the transactional approach adopted by New York in res judicata jurisprudence, `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' (citations omitted). Pursuant to this approach, the doctrine bars not only claims that were actually litigated but also claims that could have been litigated, if they arose from the same transaction or series of transactions." Marinelli Associates v. Helmsley-Noyes Co., Inc., 265 A.D.2d 1, 5 (1<sup>st</sup> Dept. 2000); see, also, Fogel v. Oelmann, 7 A.D.3d 485 (2<sup>nd</sup> Dept. 2004); MacGregor-Phillips v. MacGregor, 273 A.D.2d 206 (2<sup>nd</sup> Dept. 2000). Moreover, "collateral estoppel, a corollary to the doctrine of res judicata, `precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same' (citation omitted). The two basic requirements of the doctrine are that the party seeking to invoke collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and the party to be precluded from re-litigating the issue must have had a full and fair opportunity to contest the prior determination (citations omitted)." CRK Contracting of Suffolk, Inc. v. Jeffrey M. Brown & Associates, Inc. 260 A.D.2d 530 (2^nd Dept. 1999); see, also, Harley v. Adler, 7 A.D.3d 570 (2^nd Dept. 2004); Lozada v GBE Contracting Corp., 295 A.D.2d 482 (2^nd Dept. 2002).

The principles of res judicata and collateral estoppel apply to the quasijudicial determinations of administrative agencies. Ryan v. New York Tel. Co., 62 N.Y.2d 494 (1984); Timm v. Van Buskirk, 17 A.D.3d 686 (2^nd Dept. 2005); Jensen v. Zoning Bd. of Appeals of Village of Old Westbury, 130 A.D.2d 549 (2^nd Dept.1987). "Collateral estoppel, or issue preclusion, gives conclusive effect to an administrative agency's quasi-judicial determination when two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior...