Simpson v. Alter

• Decision Date: 09 November 2010
• Citation: 911 N.Y.S.2d 405,78 A.D.3d 813
• Parties: ShawnDya L. SIMPSON, respondent, v. Bernard M. ALTER, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 405

78 A.D.3d 813

ShawnDya L. SIMPSON, respondent,

v.Bernard M. ALTER, et al., appellants, et al., defendant.

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

Nov. 9, 2010.

Alter & Barbaro, Brooklyn, N.Y. (Stephen V. Barbaro and Bernard M. Alter pro se of counsel), appellant pro se.

Dilimetin & Dilimetin, P.C., Manhasset, N.Y. (Laura M. Dilimetin of counsel), for respondent.

A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for legal malpractice, the defendants Bernard M. Alter and Alter & Barbaro appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered March 8, 2010, as denied their motion pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against them.

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

The Supreme Court properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) based upon the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling ( see Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199, 868 N.Y.S.2d 563, 897 N.E.2d 1044; Buechel v. Bain, 97 N.Y.2d 295, 303-304, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied sub nom. Bain v. Buechel, 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051; Mahler v. Campagna, 60 A.D.3d 1009, 1011, 876 N.Y.S.2d 143). Preclusive effect may only be given to issues that were "actually litigated, squarely addressed and specifically decided" ( Ross v. Medical Liab. Mut. Ins. Co., 75 N.Y.2d 825, 552 N.Y.S.2d 559, 551 N.E.2d 1237; see Motors Ins. Corp. v. Mautone, 41 A.D.3d 800, 801, 839 N.Y.S.2d 507). Here, the appellants failed to establish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached his duty to the plaintiff by divulging confidential information which she allegedly imparted to him when he was her attorney in 2003 was actually litigated, squarely addressed, and specifically decided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alter represented candidate Diana Johnson in her challenge to the plaintiff's residency. Furthermore, "[c]ollateral estoppel is a flexible doctrine grounded in the facts and realities of a particular litigation which should not be rigidly or mechanically applied since it is, at its core, an equitable doctrine reflecting general concepts of fairness" ( Matter of Hunter, 6 A.D.3d 117, 131-132 n. 2, 775 N.Y.S.2d 42, affd. 4 N.Y.3d 260, 794 N.Y.S.2d 286, 827 N.E.2d 269; see Buechel v. Bain, 97 N.Y.2d at 303, 740 N.Y.S.2d 252, 766 N.E.2d 914). Additional factors supporting a determination that the doctrine should not be rigidly applied here are that the denial of the plaintiff's motion to disqualify Alter from representing Diana Johnson in the 2007 election proceeding was not essential to the resolution of the ultimate issue in that proceeding, which was whether the plaintiff was a resident of Kings County, and that the plaintiff's failure to appeal the adverse ruling on the disqualification motion was reasonable since she ultimately succeeded in having the challenge to her residency dismissed.

The Supreme Court also properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of...