Maurischat v. County of Nassau

• Decision Date: 15 February 2011
• Citation: 916 N.Y.S.2d 235,81 A.D.3d 793
• Parties: Hans MAURISCHAT, et al., respondents, v. COUNTY OF NASSAU, appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 235

81 A.D.3d 793

Hans MAURISCHAT, et al., respondents,

v.COUNTY OF NASSAU, appellant.

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

Feb. 15, 2011.

John Ciampoli, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), for appellant.

Michael W. Holland, Williston Park, N.Y. (Kristin O. Holland of counsel), for respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, RANDALL T. ENG and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to enjoin the defendant from diverting water onto the plaintiffs' property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), entered March 23, 2009, as denied that branch of its motion which was for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of res judicata.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2001 the plaintiffs commenced this action, inter alia, to enjoin the defendant from diverting water onto their property, which the plaintiffs alleged occurred as a result of the defendant's construction of a culvert running from its drainage pond to another body of water. The defendant moved for summary judgment dismissing the complaint on the ground, among other things, that the action was barred by the doctrine of res judicata since the plaintiffs had commenced a prior action in 1993 against the defendant seeking to recover damages allegedly caused by the defendant's failure to maintain the same drainage pond and culvert. The prior action was settled in 1998. Although the motion was granted by the Supreme Court, this Court reversed due to the defendant's failure to annex the settlement documents to its motion since, without those documents, it could not "be determined if the settlement and discontinuance of the prior action was on the merits or with prejudice to relitigation of the discontinued claim, or if the parties otherwise intended the settlement and discontinuance to have preclusive effect" ( Maurischat v. County of Nassau, 305 A.D.2d 470, 471, 758 N.Y.S.2d 842).

After locating the settlement documents, the defendant moved, inter alia, for summary judgment on res judicata grounds. The Supreme Court denied that branch of the defendant's motion on the ground that since the settlement documents did not state that the prior action was settled "with prejudice," res judicata was inapplicable to bar the second action. " 'Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action' " ( Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 12, 862 N.Y.S.2d 316, 892 N.E.2d 380, quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647; see Wisell v. Indo-Med Commodities, Inc., 74 A.D.3d 1059, 903 N.Y.S.2d 116,Matter of AutoOne Ins. Co. v. Valentine, 72 A.D.3d 953, 955, 899 N.Y.S.2d 354; Pawling Lake Prop. Owners Assn., Inc. v. Greiner, 72 A.D.3d 665, 667, 897 N.Y.S.2d 729; 99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 A.D.3d 656, 658, 893 N.Y.S.2d 627). "A voluntary discontinuance ordinarily is not a decision on the merits, and res judicata does notbar a [plaintiff] from maintaining another proceeding for the same claim unless the order of discontinuance recites that the claim was discontinued or settled on the merits" ( Matter of AutoOne Ins. Co. v. Valentine, 72 A.D.3d at 955, 899 N.Y.S.2d 354). Thus, a stipulation to discontinue an action without prejudice is not subject to the doctrine of res judicata ( see Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d at 12, 862 N.Y.S.2d 316, 892 N.E.2d 380; Matter of AutoOne Ins. Co. v. Valentine, 72 A.D.3d 953, 899 N.Y.S.2d 354; see also 99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 A.D.3d at 658, 893 N.Y.S.2d 627; cf. Greenstone/Fontana Corp. v. Feldstein, 72 A.D.3d 890, 893, 901 N.Y.S.2d 643; Pawling Lake Prop. Owners Assn., Inc. v....