Maki v. Bassett Healthcare

• Decision Date: 21 July 2016
• Citation: 141 A.D.3d 979,2016 N.Y. Slip Op. 05603,35 N.Y.S.3d 587
• Parties: Frank MAKI, Appellant, v. BASSETT HEALTHCARE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 979
35 N.Y.S.3d 587
2016 N.Y. Slip Op. 05603

Frank MAKI, Appellant,
v.
BASSETT HEALTHCARE et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 21, 2016.

35 N.Y.S.3d 588

Frank Maki, Walton, appellant pro se.

Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Shawn F. Brousseau of counsel), for respondents.

Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.

CLARK, J.

141 A.D.3d 979

Appeals (1) from an order of the Supreme Court (Becker, J.), entered July 10, 2015 in Delaware County, which granted defendants' motion for, among other things, summary judgment dismissing the complaint, and (2) from an order of said court (Reynolds Fitzgerald, J.), entered November 16, 2015 in Delaware County, which, among other things, denied plaintiff's motion to renew.

In 2010, plaintiff commenced an action for personal injuries allegedly sustained as a result of medical treatment rendered by defendants in 2008 and 2009 following a 2008 motor vehicle accident. Supreme Court (Peckham, J.) granted defendants'

141 A.D.3d 980

motion for summary judgment dismissing the complaint. Upon plaintiff's appeal, this Court affirmed (Maki v. Bassett Healthcare, 85 A.D.3d 1366, 924 N.Y.S.2d 688 [2011], appeal dismissed 17 N.Y.3d 855, 930 N.Y.S.2d 550, 954 N.E.2d 1176 [2011], lv. dismissed and denied 18 N.Y.3d 870, 938 N.Y.S.2d 852, 962 N.E.2d 276 [2012] ). In 2013, plaintiff commenced an action in federal court against the same defendants, their counsel, the State of New York and various members of the Judiciary

35 N.Y.S.3d 589

involved in the adjudication of the 2010 litigation. The Second Circuit affirmed the District Court's dismissal of the complaint, and the Supreme Court of the United States denied certiorari (Maki v. New York, 597 Fed.Appx. 36 [2d Cir.2015], cert. denied ––– U.S. ––––, 136 S.ct. 362, 193 L.ed.2d 295 [2015] ).

In 2015, plaintiff commenced this action, sounding in breach of contract, simple negligence and fraud, to recover damages for the injuries that he allegedly sustained as a result of the same medical treatment rendered by defendants following the 2008 accident. In lieu of answering, defendants moved for, among other things, summary judgment dismissing the complaint, sanctions and an injunction prohibiting plaintiff from commencing any further actions or proceedings relating to the medical treatment that was the subject of the 2010 action. Supreme Court (Becker, J.) granted the motion in its entirety, holding that plaintiff's claims were barred by the doctrines of res judicata and collateral estoppel, as well as by the applicable statute of limitations. The court further determined that plaintiff's complaint was frivolous, awarded costs and counsel fees to defendants and enjoined plaintiff from bringing any further actions or proceedings relating to the medical treatment rendered by defendants in 2008 and 2009 without prior court approval. Plaintiff then moved to renew and/or vacate the order granting summary judgment to defendants, which motion Supreme Court (Reynolds Fitzgerald, J.) denied. Plaintiff now appeals from both orders.

Initially, we note that, because defendants' motion was made pre-answer, Supreme Court should not have decided it pursuant to CPLR 3212 without first notifying the parties of its conversion (see CPLR 3211[c] ; Lockheed Martin Corp. v. Aatlas Commerce Inc., 283 A.D.2d 801, 802, 725 N.Y.S.2d 722 [2001] ; see also Yule v. New York Chiropractic Coll., 43 A.D.3d 540, 541, 840 N.Y.S.2d 837 [2007] ). Therefore, we proceed to determine the motion “in accordance with the requirements of CPLR 3211 ” (Lockheed Martin Corp. v. Aatlas Commerce, Inc., 283 A.D.2d at 803, 725 N.Y.S.2d 722 ), and, in so doing, we “ ‘afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference’ ” (Stainless Broadcasting Co. v. Clear Channel

141 A.D.3d 981

Broadcasting Licenses, L.P., 58 A.D.3d 1010, 1012, 871 N.Y.S.2d 468 [2009], quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).

Turning to the merits, “[t]he doctrine of res judicata bars a party from litigating a claim where a final [disposition] on the merits has been rendered on the same subject matter, between the same parties” (Bernstein v. State of New York, 129 A.D.3d 1358, 1359, 10 N.Y.S.3d 752 [2015] ; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ). 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” (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ; accord Matter of Bemis v. Town of Crown Point, 121 A.D.3d 1448, 1450–1451, 995 N.Y.S.2d 794 [2014] ). Relatedly, collateral estoppel “proscribes the relitigation of issues finally and necessarily determined in a prior [action or] proceeding so long as the parties were afforded a full and fair opportunity to litigate those issues in the prior [action or] proceeding” (

35 N.Y.S.3d 590

Matter of Feldman v. Planning Bd. of the Town of Rochester, 99 A.D.3d 1161, 1163, 952 N.Y.S.2d 824 [2012] [internal quotation marks, brackets and citation omitted]; see Clark v. Farmers New Century Ins. Co., 117 A.D.3d 1208, 1209, 985 N.Y.S.2d 748 [2014], lv. dismissed and denied 24 N.Y.3d 991, 997 N.Y.S.2d 103, 21 N.E.3d 554 [2014] ).

The claims asserted in this action stem from the same series of...