Neulist v. Nassau County

• Decision Date: 05 March 1981
• Citation: 437 N.Y.S.2d 239,108 Misc.2d 160
• Parties: Robert S. NEULIST, Plaintiff, v. The COUNTY OF NASSAU et al., Defendants.
• Court: New York Supreme Court

Page 239

437 N.Y.S.2d 239

108 Misc.2d 160

Robert S. NEULIST, Plaintiff, v. The COUNTY OF NASSAU et al., Defendants.

Supreme Court, Special Term, Nassau County, Part I.

March 5, 1981.

John V. Hanna, Garden City, for plaintiff.

Edward G. McCabe, County Atty., of Nassau Cty., Mineola, for defendants; by James H. Madden, Deputy County Atty., Mineola, of counsel.

JAMES F. NIEHOFF, Judge.

This is a common-law action for malicious prosecution in which the plaintiff seeks to recover damages in the sum of $10,300,000.00. The action arises out of the prosecution of the plaintiff, Robert S. Neulist, for the alleged murder of his wife on May 12, 1971. Before the Court is (1) a motion by the defendants County of Nassau, Matthew Bonora, John Wichmann, Andrew Mulraine, Thomas F. Heffernan, Fred Catapano and James J. Mahoney for summary judgment dismissing the complaint, and (2) a cross-motion by the plaintiff for an order limiting the defendants' papers on their motion for summary judgment to the notice of motion and supporting affirmation of James H. Madden, Esq.

In seeking to have the Court consider only the defendants' Notice of Motion and supporting affidavit on the defendants' motion for summary judgment, the plaintiff argues that if the Court were also to consider the exhibits submitted by the defendants, an appeal would be virtually precluded because the record on appeal must contain all the exhibits and the cost of reproducing them would be prohibitive.

Plaintiff has offered no precedent for his request that the court consider the moving papers and those offered in opposition only, and ignore the exhibits proffered by the defendants. To grant this request by plaintiff would fly in the face of the clear intent of CPLR 3212, which exhorts the parties to submit evidence and proof in support of and in opposition to the motion. Consequently, plaintiff's cross-motion is denied. If the plaintiff chooses to appeal the decision of this Court on the motion for summary judgment, plaintiff may ask the Appellate Division to grant him permission to appeal on the one set of exhibits submitted to this Court so as to keep the cost of the appeal within reasonable bounds. Of course, it is not for this Court but for the Appellate Division to say whether such relief will be granted. Suffice it to say that this Court will not accede to plaintiff's request that it not examine the exhibits.

THE FACTS

Commencing June 29, 1971 evidence was presented to a Grand Jury which resulted in the return of an indictment on July 29, 1971 charging the plaintiff Robert S. Neulist with the murder of his wife. Pursuant to the indictment the plaintiff was arrested and following his arraignment he was confined in the Nassau County Jail until August 2, 1971 when he was released on bail.

The trial commenced on February 5, 1974. On March 18, 1974 following completion of the trial upon the indictment, a verdict of not guilty was rendered by the Jury.

On January 30, 1975, the plaintiff, Robert S. Neulist, instituted a civil action for the alleged violation of his civil rights pursuant to 42 U.S.C. § 1983 in the U.S. District Court, Eastern District, against the above-named defendants.

On February 26, 1975, the plaintiff Robert S. Neulist commenced the within action against these same defendants for malicious prosecution. The factual allegations of the two complaints are identical. The only differences in the complaints are the jurisdictional allegations and the plaintiff's use of Roman numerals in the complaint in the Federal action and Arabic numerals in his complaint in this Court.

After the commencement of the Federal action the defendants moved to dismiss the complaint in that action for failure to state a claim upon which relief could be granted, or, in the alternative, for summary judgment.

By Memorandum Decision and Order dated March 16, 1976 Chief Judge Jacob Mishler granted judgment dismissing the civil rights action against all of the named defendants, including the movants herein.

After the dismissal of the Federal action by Judge Mishler, a motion for summary judgment was made in this Court on December 19, 1978 on behalf of the defendants Cahn, Dillon, Kopilow and Friedman, the prosecutor-defendants, on the ground that they were immune from civil prosecution by virtue of their positions as prosecutors. Initially, Mr. Justice Bernard F. McCaffrey denied that motion. However, upon reargument, Justice McCaffrey held that the doctrine of collateral estoppel precluded the plaintiff from litigating against the prosecutor-defendants the issue of immunity previously decided by Judge Mishler and he granted those defendants summary judgment in their favor. At that time no application was made to Justice McCaffrey for summary judgment on behalf of the police officers who were involved in the investigation of the plaintiff's wife, the defendants who are the movants herein.

The present motion by the defendant County of Nassau and said police officers for summary judgment is premised on the ground that the action against them is barred by virtue of the doctrine of res judicata and/or collateral estoppel in that Judge Mishler's decision is controlling on the issue of the lack of good faith.

The plaintiff, Robert S. Neulist, on his part, argues that the motion should be denied because (1) Judge Mishler's decision is not controlling; (2) the defense of res judicata and collateral estoppel is legally insufficient; (3) said defense may not be asserted in support of a motion for summary judgment where it is not pleaded as an affirmative defense in the answer; (4) the defendants are bound by the law of the case; (5) the defendants are guilty of laches; and (6) issues of fact exist which preclude summary judgment.

THE PROCEDURAL OBJECTIONS TO THE DEFENDANTS' MOTION

The contention by the plaintiff that the defendants should be estopped from raising the affirmative defense of res judicata and/or collateral estoppel at this time because of laches, or because they failed to set forth the claim as an affirmative defense, is without merit. Although it is unclear why the County did not move on behalf of all of the defendants in its prior motion of December 19, 1978, a party may move to amend the pleadings at any time and the motion will be granted, even though late, if there is no showing of prejudice (Siegel, McKinney's Practice Commentaries, § 3025:5). The plaintiff has made no showing of legal prejudice herein. Similarly, a party may move for summary judgment at any time, and the fact that collateral estoppel is not raised in an answer, absent surprise or prejudice does not mandate denial of the motion especially where a plaintiff "was already aware of the facts which constituted the defense." (Darling v. City of Niagara Falls, 69 A.D.2d 989, 990 416 N.Y.S.2d 122). This is particularly true in a case such as the one at bar where the basis for the collateral estoppel (the March 16, 1976 Decision and Order) was not even in existence when issue was joined (March 31, 1975).

The argument that the law of the case is a bar to defendants' motion is also without merit. The answer that was served by the defendants herein contains three affirmative defenses: (1) good faith and probable cause; (2) immunity; and (3) the pendency of the aforesaid Federal action. On May 28, 1975 plaintiff moved for an order striking those defenses. By order dated June 19, 1975 Mr. Justice Pittoni held that the defense of immunity created "an issue of fact" and that, therefore, such defense should be permitted to stand pending the trial. The third affirmative defense was dismissed. The order of Mr. Justice Pittoni was affirmed by the Appellate Division.

Pointing to said decision holding that an issue of fact exists herein plaintiff claims that the defendants are bound by the law of the case. The Court rejects such contention.

The thrust of the plaintiff's argument is to the effect that because the prior court order, entered as a result of the plaintiff's motion to dismiss the defenses set forth in the answer of the defendants, held that there was an issue of fact "with respect to immunity warranting a trial of such issue" the defendants are barred from seeking summary judgment at this time. Inasmuch as the moving defendants' application is addressed not to the issue of immunity, but to the question of Judge Mishler's finding that the plaintiff had failed to demonstrate that there was a lack of good faith on the part of the police officers, the Court holds that there is no "law of the case" which would preclude this application.

THE SUBSTANCE OF THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

As noted above, it is the contention of the police officers that the decision of Chief Judge Mishler in the civil rights action results in a res judicata or collateral estoppel bar to this common-law tort action. The plaintiff on his part, contends that the Federal court decision is not controlling and does not bar this action.

Briefly stated, the doctrine of res judicata requires a court to dismiss a subsequent identical action previously litigated by the same parties. (See, generally, 9 Carmody-Waite 2d § 63.201).

In opposing the application of the doctrine to this case, the plaintiff argues that his cause of action in this Court is separate and distinct from his civil rights claim in the Federal court and, so, the judgment of the Federal court is not res judicata in this action. It is true that the Appellate Division in this Department has already ruled in this case that "a common-law action for malicious prosecution brought in this State may coexist with a pending Federal civil rights action based upon the same facts (Monroe v. Pape, 365 U.S. 167, 176, 183 (81 S.Ct. 473, 478, 481, 5 L.Ed.2d 492))." (Neulist v. County of Nassau, et al., 50 A.D.2d 803, 375 N.Y.S.2d 634). However, that same Court has recently held that even though a plaintiff may institute a State court common-law action as...