Rojas v. Romanoff

Decision Date23 July 2020
Docket Number11536,Index 24579/19E
Citation186 A.D.3d 103,128 N.Y.S.3d 189
Parties Angel ROJAS, Plaintiff–Respondent, v. Richard ROMANOFF, et al., Defendants–Appellants.
CourtNew York Supreme Court — Appellate Division

Hollander Legal Group, PC, Melville (Allan S. Hollander of counsel), for appellants.

Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for respondent.

Rolando T. Acosta, P.J., Dianne T. Renwick, Troy K. Webber, Ellen Gesmer, JJ.


This personal injury action raises long established principles of res judicata and collateral estoppel, more commonly referred to, respectively, as claim preclusion and issue

preclusion. Specifically, this appeal concerns the preclusive effect on claims and issues in a personal injury action of a prior first-party, no-fault benefits action.1 In the present action, plaintiff sues defendants, the owner and driver of a motor vehicle that allegedly collided with plaintiff pedestrian. In the prior action, Nationwide Agribusiness Insurance Company, defendants' (driver/owner) insurer, brought a declaratory judgment action against plaintiff and, by default judgment, obtained a declaration that it was not obligated to pay no-fault benefits to the claimant, plaintiff here, under the policy covering defendants' motor vehicle. In the declaratory judgment action, Nationwide claimed, among other things, that the injuries sustained by plaintiff did not come from the use or operation of a Nationwide insured vehicle and that plaintiff's injuries were caused while he was operating a motorcycle, which is not covered by no-fault law.2 Those issues were never litigated, because the declaratory judgment was granted on default.

We affirm the order of Supreme Court that denied defendants' motion to dismiss the complaint on the grounds of collateral estoppel and res judicata. We hold that neither claim preclusion nor issue preclusion applies to bar this personal injury action. First, the default nature of the judgment rendered in the prior declaratory judgment action prevents application of issue preclusion. Second, claim preclusion also does not apply because both actions did not involve the same parties or their parties in privity. As fully explained below, "same parties" means the same adversarial parties, and plaintiff and defendants were not adversaries in the prior litigation. As to claim preclusion, the only adversaries in the prior action were plaintiff (as a defendant) and defendants' (driver's/owner's) insurer, Nationwide (as the plaintiff) with whom defendants (driver/owner) were not in privity in the no-fault benefits dispute.

Factual and Procedural Background

This personal injury action was commenced by plaintiff Angel Rojas against defendants Richard Romanoff and Nebraskaland, Inc. to recover damages for personal injuries sustained during a purported motor vehicle accident that occurred on September 15, 2016. Plaintiff claims that he was "walking" his motorcycle across the street when he was struck by a vehicle being driven by defendant Richard Romanoff and owned by defendant Nebraskaland, Inc. Defendants, however, maintain that plaintiff fell off his motorcycle while performing wheelies, and that Romanoff slowly drove over one of the wheels of plaintiff's motorcycle, but did not actually strike plaintiff. Allegedly, plaintiff and others then collected the motorcycle and fled the scene, while Romanoff remained and called the police. A group of males allegedly then began to gather and bang on his car, causing Romanoff to flee out of fear. The group pursued Romanoff past a security entrance at the Hunts Point Meat Market and blocked him from leaving before continuing to attack and damage his vehicle.

After plaintiff filed a claim for no-fault benefits from Nationwide, defendants' insurer, Nationwide commenced a declaratory judgment action in Supreme Court, Nassau County, seeking a declaration, among other things, that: plaintiff was not an "eligible injured person," and had made material misrepresentations of fact and false/fraudulent statements in connection with his claim, and therefore was not entitled to no-fault benefits from Nationwide; "the injuries sustained by [plaintiff] did not arise from the use or operation of a NATIONWIDE insured vehicle"; plaintiff's "injuries were caused while he was operating a motorcycle" and Nationwide was not obligated to pay no-fault benefits, or afford bodily injury coverage, to plaintiff. Defendants here (Nationwide's insureds, driver/owner) were also named as nominal defendants in the declaratory judgment action. However, Nationwide did not seek any specific relief or declaration against its insureds regarding its duties under the motor vehicle policy to defend and indemnify the owner and driver of the insured vehicle.

Plaintiff defaulted in appearing in the declaratory judgment action, and, as a result, a default judgment was entered on January 24, 2018, which declared that Nationwide was not obligated either to pay no-fault benefits or to afford any bodily injury coverage to plaintiff for personal injuries arising from the September 15, 2016 incident. After plaintiff commenced this action in Supreme Court, Bronx County in April 2019, defendants moved pre-answer to dismiss. In support, they argued that the default judgment in the Nassau County declaratory judgment action collaterally estopped plaintiff and barred plaintiff by res judicata from relitigating whether defendants were liable for any injuries that plaintiff may have allegedly suffered. In opposition, plaintiff argued that he did not fully litigate the issues raised in the declaratory judgment action, since the judgment in that case was entered on default. Supreme Court denied defendants' motion. It held that the default judgment in the Nassau County declaratory judgment action did not collaterally estop plaintiff in this action because plaintiff did not willfully or deliberately refuse to participate in that action. Nor was plaintiff barred by res judicata since the judgment entered in the Nassau County declaratory judgment action was entered on his default, and the issues in that action were not the same as those raised in the instant case.


Conceptually, "res judicata" is an umbrella term encompassing both claim preclusion and issue preclusion, which are described as two separate aspects of an overarching doctrine (see Gramatan Home Invs. Corp. v. Lopez , 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ; Cromwell v. County of Sac , 94 U.S. 351, 352–53, 24 L.Ed. 195 [1876] ; 73A N.Y. Jur 2d, Judgments § 428 ; Restatement (Second) of Judgments, Volume 1, § 24 [1982] ). Claim preclusion, the primary aspect of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties ( O'Brien v. City of Syracuse , 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ; Lodal, Inc. v. Home Ins. Co. , 309 A.D.2d 634, 634, 766 N.Y.S.2d 19 [1st Dept. 2003] ); issue preclusion, the secondary aspect, historically called collateral estoppel, pertains to the bar on relitigating issues that were argued and decided in the first suit ( Buechel v. Bain , 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001] [citation omitted], cert denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ).

It is important to distinguish these two types of preclusion, because they have different requirements. Claim preclusion prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding (see Landau, P.C. v. LaRossa, Mitchell & Ross , 11 N.Y.3d 8, 12, 862 N.Y.S.2d 316, 892 N.E.2d 380 [2008] ; Matter of Josey v. Goord , 9 N.Y.3d 386, 389, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007] ; Matter of Hunter , 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ; O'Brien v. Syracuse , 54 N.Y.2d at 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; Gramatan Home Invs. Corp. v. Lopez , 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ). As the Court of Appeals has stressed, this "identity" requirement is a "linchpin of res judicata," which applies "only when a claim between the parties has been previously ‘brought to a final conclusion’ " ( City of New York v. Welsbach Elec. Corp. , 9 N.Y.3d 124, 127, 848 N.Y.S.2d 551, 878 N.E.2d 966 [2007] [emphasis omitted], quoting Parker v. Blauvelt Volunteer Fire Co. , 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999] ; see also Blue Sky, LLC v. Jerry's Self Storage, LLC , 145 A.D.3d 945, 44 N.Y.S.3d 173 [2d Dept. 2016] ). Stated differently, the "doctrine of res judicata only bars additional actions between the same parties on the same claims based upon the same harm" ( Employers' Fire Ins. Co. v. Brookner , 47 A.D.3d 754, 756, 850 N.Y.S.2d 554 [2d Dept. 2008] [internal quotation marks omitted] ).

Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action ( Buechel v. Bain , 97 N.Y.2d at 303, 740 N.Y.S.2d 252, 766 N.E.2d 914 ; Ryan v. New York Tel. Co. , 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action ( Buechel v. Bain , 97 N.Y.2d at 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 ). There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party (see Arizona v. California , 460 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318 [1983] ; People v. Guerra , 65 N.Y.2d 60, 63, 489 N.Y.S.2d 718, 478 N.E.2d 1319 [1985] ; Sales v. State Farm Fire & Cas. Co. , 902 F.2d 933, 936 [11th Cir 1990] ).

Issue preclusion differs from claim preclusion in two ways....

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