Rackowski v. Araya

• Decision Date: 06 July 2017
• Citation: 152 A.D.3d 834,58 N.Y.S.3d 698
• Parties: Richard P. RACKOWSKI, Appellant, v. Abiy ARAYA, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 834

58 N.Y.S.3d 698

Richard P. RACKOWSKI, Appellant,

v.Abiy ARAYA, et al., Defendants.

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

July 6, 2017.

Richard P. Rackowski, Amsterdam, appellant pro se.

Before: PETERS, P.J., ROSE, MULVEY, AARONS and PRITZKER, JJ.

ROSE, J.

Appeal from an order of the County Court of Fulton County (Hoye, J.), entered March 17, 2015, which affirmed a judgment of the City Court of the City of Gloversville in favor of defendants.

In 2005, defendants commenced an action pursuant to RPAPL article 15 to extinguish the right-of-way of plaintiff and one of his family members over Bertrand Road Extended in the Town of Mayfield, Fulton County. Plaintiff answered and stated a counterclaim alleging that defendants had interfered with his family's use of the right-of-way. After defendants failed to pursue the action, Supreme Court (Aulisi, J.) dismissed the complaint and granted plaintiff's counterclaim, determining that plaintiff's family has a right-of-way over Bertrand Road Extended and permanently enjoining defendants from interfering with that right-of-way.

Thereafter, plaintiff commenced this small claims action against defendants, asserting causes of action for negligent infliction of emotional distress and malicious prosecution. Prior to trial, defendants moved to dismiss the complaint and City Court granted the motion, finding that plaintiff's causes of action were barred by the doctrine of res judicata. On plaintiff's appeal, County Court agreed that the doctrine of res judicata barred his causes of action and also found, on the merits, that plaintiff failed to establish his claim for malicious prosecution. Accordingly, County Court affirmed City Court's judgment, and this appeal ensued.

The doctrine of res judicata provides that " ‘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’ " (Matter of Josey v. Goord, 9 N.Y.3d 386, 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007], quoting 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 Maki v. Bassett Healthcare, 141 A.D.3d 979, 981, 35 N.Y.S.3d 587 [2016], appeal dismissed and lv. denied 28 N.Y.3d 1130, 45 N.Y.S.3d 370, 68 N.E.3d 99 [2017] ). Nevertheless, the permissive counterclaim rule operates to "save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties' prior action" so long as the second action is not based on "a preexisting claim for relief that would impair the rights or interests established in the first action" ( Henry Modell & Co. v. Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 N.Y.2d 456, 462 n. 2, 510 N.Y.S.2d 63, 502 N.E.2d 978 [1986] ; see Paramount Pictures Corp. v. Allianz Risk Transfer AG, 141 A.D.3d 464, 467, 36 N.Y.S.3d 11 [2016], lv. granted 28 N.Y.3d 909, 2016 WL 6840114 [2016] ; 67–25 Dartmouth St. Corp. v. Syllman, 29 A.D.3d 888, 889–890, 817 N.Y.S.2d 299 [2006] ).

A review of the record establishes that, although some of plaintiff's allegations relate to events that predate the first action and are connected to defendants' attempts in the first action to assert their rights as property owners, the monetary relief that plaintiff now seeks is different than the relief he obtained in the first action and would in no way impair the rights established by the first action. Thus, we find that County Court's conclusion that the doctrine of res judicata bars plaintiff from raising his negligent infliction of emotional distress and malicious prosecution claims in this action was clearly erroneous (see Classic Autos. v. Oxford Resources Corp., 204 A.D.2d 209, 209, 612 N.Y.S.2d 32 [1994] ; compare 67–25 Dartmouth St. Corp. v. Syllman, 29 A.D.3d at 890, 817 N.Y.S.2d 299 ). Accordingly, we conclude that "substantial justice was not meted out according to the substantive law" as to these claims ( Valley Psychological, P.C. v. Liberty Mut. Ins. Co., 30 A.D.3d 718, 719, 816 N.Y.S.2d 239 [2006] ; see UCCA 1807 ; Pugliatti v. Riccio, 130 A.D.3d 1420, 1421, 14 N.Y.S.3d 785 [2015] ).¹

We also find that County Court erred...