Neuman v. Echevarria

• Decision Date: 03 April 2019
• Docket Number: Index No. 703432/16,2017–00662
• Parties: Marvin NEUMAN, Respondent, v. David ECHEVARRIA, Defendant, Richard Capuano, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 767

97 N.Y.S.3d 203

Marvin NEUMAN, Respondent,

v. David ECHEVARRIA, Defendant,Richard Capuano, Appellant.

2017–00662

Index No. 703432/16

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

Argued—December 7, 2018

April 3, 2019

Kenneth D. Litwack, Bayside, NY, for appellant.

Michael G. O'Neill, New York, NY, for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest and assault, the defendant Richard Capuano appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated December 1, 2016. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against him based upon res judicata, collateral estoppel, and failure to state a cause of action.

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

The plaintiff encountered a tow truck that was in the process of towing his vehicle for Scofflaw violations. The defendant Richard Capuano (hereinafter the defendant), a New York City Marshal, and three other individuals from a private tow company were overseeing the towing process. The plaintiff alleged that two of the three individuals who were with the defendant assaulted him and then left the scene with the defendant. The plaintiff called the police, who, after locating the defendant and speaking with him, arrested the plaintiff for obstruction of governmental administration. The charges were ultimately dismissed.

The plaintiff commenced an action in the United States District Court for the Eastern District of New York against, among others, the defendant, alleging that the defendant violated 42 USC § 1983 and state common law in relation to the plaintiff's arrest and the alleged assault against him. The defendant moved to dismiss the federal action insofar as asserted against him, and the federal district court granted the motion to the extent of dismissing the 42 USC § 1983 causes of action. The federal district court declined to exercise jurisdiction over the state common-law causes of action.

The plaintiff subsequently commenced this action, alleging, inter alia, false arrest and assault against, among others, the defendant. The defendant moved, inter alia, pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against him on the grounds of res judicata, collateral estoppel, and failure to state a cause of action. The Supreme Court denied the defendant's motion, and the defendant appeals.

Since the federal court did not assume jurisdiction over the plaintiff's pendent state law causes of action, they are not barred by res judicata (see Van Hof v. Town of Warwick, 249 A.D.2d 382, 671 N.Y.S.2d 144 ; Mattes v. Rubinberg, 220 A.D.2d 391, 632 N.Y.S.2d 793 ; Creative Bath Prods. v. Connecticut Gen. Life Ins. Co., 173 A.D.2d 400, 570 N.Y.S.2d 31 ; Bacon v. County of Westchester, 149 A.D.2d 451, 539 N.Y.S.2d 951 ). Furthermore, they are not barred by collateral estoppel, as the federal court did not decide issues identical to those raised by the plaintiff's state law causes of action (see Bacon v. County of Westchester, 149 A.D.2d 451, 539 N.Y.S.2d 951 ; cf. Karimian v. Time Equities, Inc., 164 A.D.3d 486, 488–489, 83 N.Y.S.3d 227 ).

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). " ‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus’ " ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153, 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 ). However, "[a] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 ; see CPLR 3211[c] ). "If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ " ( Sokol v. Leader, 74 A.D.3d at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 [internal quotation marks omitted] ). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’ " ( Sokol...