Ember v. Charlene Denizard, Danielle Birkenfeld, Roger Brown, Michael Howard Saul, 65 W. 95TH Owners Corp.

• Decision Date: 22 December 2017
• Docket Number: Index No. 151379/2016
• Citation: 2017 NY Slip Op 32704 (U)
• Parties: MAX EMBER, Plaintiff v. CHARLENE DENIZARD, DANIELLE BIRKENFELD, ROGER BROWN, MICHAEL HOWARD SAUL, 65 WEST 95TH OWNERS CORP., FENWICK KEATS MANAGEMENT, INC., and R.J. PANDA, Defendants
• Court: New York Supreme Court

2017 NY Slip Op 32704(U)

MAX EMBER, Plaintiff
v.
CHARLENE DENIZARD, DANIELLE BIRKENFELD, ROGER BROWN, MICHAEL HOWARD SAUL, 65
WEST 95TH OWNERS CORP., FENWICK KEATS MANAGEMENT, INC., and R.J. PANDA, Defendants

Index No. 151379/2016

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: December 27, 2017
December 22, 2017

NYSCEF DOC. NO. 102

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Defendants previously moved to dismiss the complaint based on its failure to state a claim, documentary evidence, releases, res judicata, and another pending proceeding. C.P.L.R. § 3211(a)(1), (4), (5), and (7). In a decision dated August 3, 2017, the court granted defendants' motion based on res judicata. C.P.L.R. § 3211(a)(5). Plaintiff now moves to reargue defendants' motion to dismiss his first claim only, which seeks damages for his respiratory condition caused by their failure to provide heat in his cooperative apartment in 2014. C.P.L.R. § 2221(d).

I. PRIOR LITIGATION BETWEEN PLAINTIFF AND DEFENDANTS

The court dismissed this first claim based on a Stipulation of Settlement dated October 26, 2015, between plaintiff and all defendants here in a proceeding by defendant residential cooperative corporation against plaintiff, a unit owner in the cooperative's building. In that proceeding plaintiff

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counterclaimed for conditions dangerous to his health caused by the cooperative's failure to provide heat in his cooperative apartment in 2014. More significantly, the Stipulation of Settlement requires that, upon compliance with the Stipulation, plaintiff was to exchange releases that release all defendants now named in this action from liability for any claims plaintiff:

ever had, now has, or may have against RELEASEE, for, upon or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of this Release, but limited to those claims asserted and/or that could have been asserted by Max Ember in the proceeding commenced in the Civil Court of the City of New York, County of New York, entitled 65 West 95th Owners Corp. v. Max Ember, et al., Index No. L&T 51752/2015 and the action commenced in the Supreme Court of the State of New York, County of New York, entitled Max Ember v. Charlene Denizard, et al., Index No. 652142/2014.

Aff. in Opp'n of Max Ember (May 12, 2016) Ex. C ¶ 5 (emphases added). The complaint in this action does not mention the October 2015 Stipulation of Settlement in the Civil Court proceeding, let alone allege defendants' noncompliance with that Stipulation of Settlement. Insofar as plaintiff insists that the parties did not intend the Stipulation of Settlement to preclude a later action based on a theory or seeking relief not litigated in the prior proceeding or action, the Stipulation of Settlement's agreement to execute the releases is the best evidence of the parties' intent. Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 245 (2014); Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436 (2013); Marin v. Constitution Realty, 128 A.D.3d 505, 507 (1st Dep't 2015).

Also significant is the prior action in this court to which

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the releases refer and which alleged conditions in plaintiff's apartment in 2014 that "are, and continue to be, dangerous, hazardous and/or detrimental to Plaintiff's life, health and safety. Said conditions include, but are not limited to, the following: (a) lack of heat and non-working heating system . . . ." Aff. of Jeffrey H. Roth (Sept. 7, 2017) Ex. E ¶ 14. That action further alleged that the conduct by the same defendants as in this action in failing to provide heat "has injured the Plaintiff," id. ¶ 32, for which "Plaintiff is entitled to compensatory damages." Id. ¶ 33. A Stipulation of Discontinuance dated November 2, 2015, discontinued those claims with prejudice.

II. THAT LITIGATION'S PRECLUSIVE EFFECT ON THIS ACTION

The complaint in this action repeats those allegations almost verbatim, except plaintiff specifies that the lack of heat and defendants' failure to repair the heating system in 2014 have caused him to suffer pneumonia, and the detriment to his health and injury for which he is entitled to compensatory damages include irreparable damage to his lungs. Even though the diagnosis of damage to his lungs was after the Stipulation of Settlement and Stipulation of Discontinuance, this damage was caused by defendants' same conduct during 2014 alleged by plaintiff in both the prior Supreme Court action and the prior Civil Court proceeding. See Berkowitz v. Fischbein, Badillo, Wagner & Harding, 7 A.D.3d 385, 387 (1st Dep't 2004).

This damage thus might have been claimed in the prior

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Supreme Court action as among the detriments to...