Mosley v. 137th St. Props., LLC

• Decision Date: 17 May 2012
• Docket Number: Index No. 117893/2009
• Citation: 2012 NY Slip Op 31309
• Parties: SEAN MOSLEY, Plaintiff v. 13 7TH STREET PROPERTIES, LLC, Defendant
• Court: New York Supreme Court

2012 NY Slip Op 31309

SEAN MOSLEY, Plaintiff
v.
13 7TH STREET PROPERTIES, LLC, Defendant

Index No. 117893/2009

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

Dated: April 13, 2012
Dated: May 17, 2012

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Plaintiff sues to recover for personal injuries he sustained October 9, 2009, while on defendant's premises. Plaintiff commenced this action by filing a summons and complaint December 22, 2009. Defendant moves to dismiss the complaint with prejudice on the grounds of res judicata, collateral estoppel, and issue preclusion. C.P.L.R. § 3211(a)(5). For the reasons explained below, the court denies defendant's motion.

Plaintiff commenced a prior action to recover for personal injuries sustained October 9, 2009, on defendant's premises by-filing a summons and complaint October 20, 2009, which was assigned Index No. 115433/2009. In that action, the court (Kenney, J.) granted defendant's motion to compel disclosure in an order dated May 14, 2010, which provided that "failure to comply with these Court issued orders, shall result in dismissal of the complaint, upon written notice of motion of such non-compliance." Aff. of Paul Tripodo Ex. A. The court (Kenney, J.) also granted a motion by plaintiff's attorney to withdraw as

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counsel in an order dated June 24, 2 010, which directed plaintiff to retain a new attorney or notify the court in writing within 3 0 days of his intent to proceed without an attorney and stayed the action for that period. Although defendant claims Justice Kenney dismissed the prior action due to plaintiff's noncompliance with the prior orders, the dismissal order dated June 2, 2011, simply provides: "It is hereby ordered that the Clerk of the Court shall enter judgment in favor of defendant and against plaintiff, dismissing the complaint." Tripodo Aff. Ex. F.

Under the doctrines of res judicata and claim preclusion, a final judgment on a claim bars future actions between the same parties for the same claims or other claims arising from the same transactions between the parties. Landau v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 12 (2008); Josey v. Goord, 9 N.Y.3d 386, 389-90 (2007); Matter of Hunter, 4 N.Y.3d 260, 269 (2005); Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347 (1999). The judgment must be on the merits to give it preclusive effect. Landau v. LaRossa, Mitchell & Ross, 11 N.Y.3d at 13; Kalisch v. Maple Trade Fin. Corp., 35 A.D.3d 291 (1st Dep't 2006); Esoinoza v. Concordia Intl. Forwarding Corp., 32 A.D.3d 326, 328 (1st Dep't 2006).

Defendant demonstrates that the complaints in this action and the prior action allege the same personal injury claim between the same parties. See Lusk v. Weinstein. 85 A.D.3d 445, 446 (1st Dep't 2011); North Am. Van Lines, Inc. v. American Intl. Cos., 38 A.D.3d 450, 451 (1st Dep't 2007); AmBase Corp. v. Pryor

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Cashman Sherman & Flvnn LLP, 35 A.D.3d 174, 175 (1st Dep't 2006). The court's dismissal of the prior action, however, does not furnish a basis to dismiss this action. The order dated June 2, 2011, did not indicate whether the dismissal of the prior action was with or...