Tovar v. Tesoros Prop. Mgmt., LLC.

• Decision Date: 10 July 2014
• Citation: 2014 N.Y. Slip Op. 05233,990 N.Y.S.2d 307,119 A.D.3d 1127
• Parties: Jamie E. TOVAR, Appellant, v. TESOROS PROPERTY MANAGEMENT, LLC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1127

990 N.Y.S.2d 307

2014 N.Y. Slip Op. 05233

Jamie E. TOVAR, Appellant,

v.TESOROS PROPERTY MANAGEMENT, LLC., et al., Respondents.

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

July 10, 2014.

Charny & Associates, Rhinebeck (Nathaniel K. Charny of counsel), for appellant.

Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady (Peter V. Coffey of counsel), for respondents.

Before: STEIN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.

STEIN, J.P.

Appeal from an order of the Supreme Court (Platkin, J.), entered December 28, 2012 in Albany County, which granted defendants' motion to dismiss the complaint.

In 2007 and 2008, plaintiff was employed by defendants Charles Herman and Gloria Herman, the owners and operators of defendant Tesoros Property Management, LLC, to perform remodeling work pursuant to an oral understanding. In October 2008, plaintiff commenced a small claims action against Tesoros in Schenectady City Court for unpaid wages for work from June 2008 through August 2008. After considering the parties' testimony, City Court dismissed the claim. More than three years later, plaintiff commenced this action against defendants seeking unpaid wages for work that he allegedly performed between August 2007 and March 2008. Defendants moved to dismiss the complaint, contending, among other things, that the claim was barred by res judicata ( seeCPLR 3211[a][5] ). Supreme Court agreed with defendants, granted the motionand dismissed the complaint. This appeal by plaintiff ensued and we affirm.

We reject plaintiff's contention that City Court's judgment does not preclude this claim because plaintiff now seeks recovery of unpaid wages for a different period of time than the time for which he sought to recover in the small claims action. Under the doctrine of res judicata, “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” ( O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981];see Matter of Josey v. Goord, 9 N.Y.3d 386, 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007];Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999] ), so long as “the party to be barred had a full and fair opportunity to litigate any cause of action arising out of the same transaction and the prior disposition was a final judgment on the merits” ( Kinsman v. Turetsky, 21 A.D.3d 1246, 1246, 804 N.Y.S.2d 430 [2005],lv. denied6 N.Y.3d 702, 810 N.Y.S.2d 416, 843 N.E.2d 1156 [2005];see Matter of Feldman v. Planning Bd. of the Town of Rochester, 99 A.D.3d 1161, 1162–1163, 952 N.Y.S.2d 824 [2012] ). Thus, where those requirements have been met, if “a plaintiff in a later action brings a claim for damages that could have been presented in a prior [action] against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata” ( Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d at 347–348, 690 N.Y.S.2d 478, 712 N.E.2d 647 [emphases added]; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005];See Why Gerard, LLC v. Gramro Entertainment Corp., 94 A.D.3d 1205, 1207, 941 N.Y.S.2d 350 [2012];Rowley, Forrest, O'Donnell & Beaumont, P.C. v. Beechnut Nutrition Corp., 55 A.D.3d 982, 984, 865 N.Y.S.2d 390 [2008] ). Stated another way, “when a plaintiff brings an action for only part of his [or her] cause of action, the judgment obtained in that action precludes him [or her] from bringing a second action for the residue of the claim” ( Stoner v. Culligan, Inc., 32 A.D.2d 170, 171–172, 300 N.Y.S.2d 966 [1969];see Sannon–Stamm Assoc., Inc. v. Keefe, Bruyette & Woods, Inc., 68 A.D.3d 678, 678, 890 N.Y.S.2d 828 [2009];Lanuto v. Constantine, 215 A.D.2d 946, 947, 627 N.Y.S.2d 144 [1995] ).

Here, the record reflects that plaintiff had a full opportunity to litigate the issues relating to his small claim for unpaid wages in City Court and such court's disposition was a final decision on the merits. It is also evident that the claim brought by plaintiff in City Court and the instant action arise out of the same series of transactions in connection with his work for defendants. Although the present action concerns wages allegedly owed for a different time period than the City Court claim, inasmuch as it had matured at the time that plaintiff commenced the prior action ( see2B Carmody–Wait § 16:2; compare Sannon–Stamm Assoc., Inc. v. Keefe, Bruyette & Woods, Inc. 68 A.D.3d at 678, 890 N.Y.S.2d 828), plaintiff could have also raised the current claim at that time ( see See Why Gerard, LLC v. Gramro Entertainment Corp., 94 A.D.3d at 1207, 941 N.Y.S.2d 350;Kinsman v. Turetsky, 21 A.D.3d at 1247, 804 N.Y.S.2d 430;Matter of Carella v. Collins, 272 A.D.2d 645, 647, 707 N.Y.S.2d 526 [2000] ) and was not entitled to split his claim for unpaid wages into separate actions ( see Swiss Hamlet Homeowners Assoc., Inc. v. Souza, 13 Misc.3d 87, 88, 827 N.Y.S.2d 432 [2006];see also Yarmosh v. Lohan, 16 Misc.3d 1119[A], 2007 N.Y. Slip Op. 51513[U], 2007 WL 2254342 [Dist.Ct., Suffolk County 2007]; 2B Carmody–Wait 2d §§ 16:1; 16:6).

Plaintiff's further contention that UCCA 1808 deprives City Court's judgment of any res judicata effect is also unavailing. We subscribe to the view that the language of this statute, as amended in 2005, only...