Weinberg v. Picker, Index No.: 510746/2015

CourtUnited States State Supreme Court (New York)
Writing for the CourtHON. RICHARD VELASQUEZ Justice.
Citation2017 NY Slip Op 31374 (U)
PartiesSEYMOUR WEINBERG, Plaintiff, v. BARRY PICKER, MESHULEM AUERBACH, PICKER & AUERBACH and PICKER, AUERBACH AND WEINBERG, P.C., Defendants.
Docket NumberIndex No.: 510746/2015
Decision Date24 April 2017

2017 NY Slip Op 31374(U)

SEYMOUR WEINBERG, Plaintiff,
v.
BARRY PICKER, MESHULEM AUERBACH,
PICKER & AUERBACH and PICKER, AUERBACH AND WEINBERG, P.C., Defendants.

Index No.: 510746/2015

New York Supreme Court

RECEIVED: June 27, 2017
FILED: May 5, 2017
April 24, 2017


NYSCEF DOC. NO. 24

At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 24th day of April, 2017.

PRESENT: HON. RICHARD VELASQUEZ Justice.

Decision and Order

The following papers numbered 1 to 5 read on this motion:

Papers
Numbered
Notice of Motion/Cross-Motion/Order to Show Cause
Affidavits (Affirmations) Annexed
1,2
Opposing Affidavits (Affirmations)
3,4
Reply Affidavits (Affirmations)
5

After oral argument and a review of the submissions herein, the Court finds as follows:

Defendant makes a Motion for Partial Summary Judgment requesting this Court to (1) dismiss all causes of action in the Complaint and (2) to sever and continue the Defendant's counterclaims. Plaintiff opposes said motion.

Plaintiff cross moves the Court for an order compelling the defendants to produce documents to ascertain the names of clients and the amounts of fees received by defendants during the relevant time period. Defendant opposes said cross-motion.

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ARGUMENTS

In the present case, Defendant contends the Plaintiff has had a fair opportunity to fully litigate the exact same issues in Small Claims Court and Plaintiff's causes of action in the Complaint are barred under the doctrine of res judicata and/or collateral estoppel.

Plaintiff contends he is not precluded from bringing this claim in Supreme Court because (1) the individual defendants named in this action were not the parties to the small claims action or judgment; (2) the doctrine of collateral estoppel as a matter of law is inapplicable to a small claims judgment; (3) and the claims raised in the small claims action are not the claims asserted in the current complaint.

Plaintiff cross moves for an order compelling the defendants to produce documents to ascertain the names of clients and the amounts of fees received by defendants during the relevant time period. Defendant contends plaintiff's cross-motion should be denied because (1) the discovery requests are precluded under res judicata; (2) the cross-motion does not comply with Kings County Civil Uniform Part Rules under which discovery motions are to be returnable in the Central Compliance Part and contain a separate affirmation of good faith; (3) and plaintiff has already obtained these records from the defendant in the Small Claims Action.

ANALYSIS
Summary Judgment

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the

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party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.

A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party". CPLR §3212 (b). The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id. The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Zuckerman v. City of New York, 49 NY2nd 557 [1990].) Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v.Algaze, 84 N.Y.2d 1019 [1995]).

Collateral Estoppel / Res Judicata

The doctrine of collateral estoppel precludes a party from re-litigating "an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point" (Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807; see, Schwartz v. Public Administrator, 24 N.Y.2d 65, 69, 298 N.Y.S.2d 955, 246 N.E.2d 725). It is a doctrine intended to reduce litigation and

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conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to re-litigate an issue that has already been decided against it.

There are two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from re-litigating the issue must have had a full and fair opportunity to contest the prior determination (Gilberg v. Barbieri, , 53 N.Y.2d at p. 291, 441 N.Y.S.2d 49, 423 N.E.2d 807; Schwartz v. Public Administrator, , 24 N.Y.2d at p. 71, 298 N.Y.S.2d 955, 246 N.E.2d 725; see, Koch v. Consolidated Edison *456 Co., 62 N.Y.2d 548, 554-555, 479 N.Y.S.2d 163, 468 N.E.2d 1, cert. denied 469 U.S. 1210, 105 S.Ct. 1177, 84 L.Ed.2d 326; Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-501, 478 N.Y.S.2d 823, 467 N.E.2d 487).

The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action (see, Ryan v. New York Tel. Co., , at p. 501, 478 N.Y.S.2d 823, 467 N.E.2d 487; Schwartz v. Public Administrator, , 24 N.Y.2d at p. 73, 298 N.Y.S.2d 955, 246 N.E.2d 725). Kaufman v. Eli Lilly and Co., 482 N.E.2d 63, 67 (N.Y. 1985).

In the present case, the defendants demonstrate the first requirement that the identical issues necessarily must have been decided in the prior action and be decisive of the present action, because they attach the prior small claims counter-claim wherein

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the plaintiff, SEYMOUR WEINBERG, requests identical reliefs as the reliefs requested in the present case. Here, the plaintiff, SEYMOUR WEINBERG, is seeking monies based on payments allegedly made by his clients to the PC. Similarly, in the Small Claims action, Mr. WEINBERG, counterclaimed for monies based on payments allegedly made by his clients to the PC. The defendants have demonstrated that the party to be precluded from re-litigating the issue must have had a full and fair opportunity to contest the prior determination by submitting the order following a trial in the small claims court. Additionally, the plaintiff had an opportunity to appeal said decision and elected not to do so.

Additionally, under the doctrine of res judicata, a disposition on the merits bars litigation 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 as a cause of action that either was raised or could have been raised in the prior proceeding (see Matter of Josey v. Goord, 9 N.Y.3d 386, 389, 849 N.Y.S.2d 497, 880 N.E.2d 18; Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269; O'Brien v. Syracuse, 54 N.Y.2d 353, 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). "One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously 'brought to a final conclusion' " (City *176 of New York v. Welsbach Elec. Corp., 9 N.Y.3d 124, 127, 848 N.Y.S.2d 551, 878 N.E.2d 966 [emphasis omitted], quoting Parker v. Blauvelt Volunteer Fire Co., 93

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N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647). Blue Sky, LLC v. Jerry's Self Storage, LLC, 145 A.D.3d 945, 44 N.Y.S.3d 173, 175-77 (N.Y. App. Div. 2016).

The Court of Appeals, while noting that privity does not have a single well-defined meaning (see Buechel v. Bain, 97 N.Y.2d 295, 740 N.Y.S.2d 252, 766 N.E.2d 914), has found that privity includes "those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] coparties to a prior action' " (id. at 304, 740 N.Y.S.2d 252, 766 N.E.2d 914, quoting Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667, 657 N.Y.S.2d 581, 679 N.E.2d 1061). "Generally, a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party [in] the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation" (D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d at 664, 563 N.Y.S.2d 24, 564 N.E.2d 634). Blue Sky, LLC v. Jerry's Self Storage, LLC, 145 A.D 3d 945, 44 N.Y.S.3d 173, 178 (N.Y. App. Div. 2016) (quoting the dissent). As such, plaintiff's contention that the parties named in the present case are not the exact parties named in the small claims case is of no moment.

Moreover, this State has adopted the transactional analysis approach in deciding res judicata issues (Matter of Reilly v Reid, 45 NY2d 24). Under this analysis, once a claim is...

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