Opinion
2423/06
08-23-2011
Alexander Breytman, Plaintiff, v. Olinville Realty LLC, Et. Al., Defendant.
Plaintiffs Attorney:Alexander Breytman, Pro se Defendants Attorney:Nabeena C. Banerjee, Esq. Jaffe & Asher, LLP
Plaintiffs Attorney:Alexander Breytman, Pro se
Defendants Attorney:Nabeena C. Banerjee, Esq. Jaffe & Asher, LLP
Yvonne Lewis, J.
The plaintiff, Alexander Breytman moves for an order of the court striking the notice of entry of an order the defendant filed on the grounds that the June 14, 2010 date indicated as the date of the order was erroneous. Mr. Breytman moves, separately, for leave to amend his complaint to add causes of action for breach of contract, false arrest and malicious prosecution. In addition, Mr. Breytman seeks to amend the above caption to include as defendants, the City of New York, the City of New York Police Department, and Detective Ralph Argiento and Captain Reynolds who arrested him, as well as Joel Weiner and Harry Hirsh. Mr. Breytman commenced the instant action to recover for a breach of warranty of habitability. With a contoured procedural history of claims, counterclaims, motions, cross-motions and appeals, the instant action arose out of an incident which occurred while Mr. Breytman was a tenant in an apartment complex owned by defendant Olinville Realty LLC (the defendant). It is alleged that in 2003 Mr. Breytman "vandalized a lobby door in the apartment complex, and the matter was reported to the police." A criminal action was commenced against him. The prosecution found that there was insufficient evidence to proceed with the criminal action.
The defendant also brought an eviction action against Mr. Breyman in Landlord-Tenant court. Eventually, the matter settled by a stipulation between the parties. Pursuant to the stipulation, Mr. Breytman was to vacate the premises in January of 2003, in exchange for a nominal sum of $6,500.
On January 24, 2006, Mr. Breytman commenced the instant action by filing a summons and a complaint. He amended the complaint on November 5, 2006 naming 35 defendants. Among other things, Mr. Breytman made numerous claims most of which sounded in a claim of a breach of warranty of habitability. The amended complaint was dismissed in its entirety. Mr. Breytman appealed. The Appellate Division, Second Department, affirmed the ruling as to all other claims but reinstated only The plaintiff's claim for personal injury. The personal injury claim arose out of the falling of plaster that allegedly fell on Mr. Breytman while he was in the shower of his Olinville apartment. Mr. Breytman's claim for personal injury was restored as to only Olinville as Olinville was the only entity against which the claim was initially brought. Issue was joined when the defendant answered Mr. Breytman's complaints asserting counterclaims for property damage at the time that Mr. Breytman vacated the premises in January 2003.
Mr. Breytman now brings two separate motions simultaneously seeking different and unrelated forms of relief. In the first motion, Mr. Breytman seeks to dismiss the notice of entry for an order that was erroneously dated and entered in a wrong court. In the second motion, he seeks to amend his amended complaint to add new causes of action, and to add new the defendants to the action.
In opposition, the defendant urges the court to dismiss both Mr. Breytman's motions. The defendant asserts that the plaintiff's first motion is moot insofar as the defendant has since rectified the error regarding the filing of the notice of entry. The defendant asserts that there is no reason to disturb the now properly filed notice of entry.
With regard to Mr. Breytman's second motion, the defendants state that Alexander Breytman did, in fact, already amend his initial complaint to add new defendants and causes of action, which were dismissed. The defendant notes that Mr. Breytman now seeks to add the same claims of false arrest and malicious prosecution in connection with "Pinnacle Group, Joel Wiener, Harry Hirsch, and Anthony Mota (collectively, the "Non-City Defendants") and Det. Ralph Argiento, Captain Reynolds, the 49th Police Precinct of the New York City Police Department and the City of New York (collectively, the "City Defendants")." The defendant further notes that Mr. Breytman made these exact claims against the same defendants in a previous action in New York County under index No. 402940/04 and that both the City and the Non-City defendants filed for summary judgment. The defendant states that, granting the City defendants' motion, the court found that since the prosecutor dismissed the criminal action because of insufficient evidence, that dismissal was not based on a finding on the merits and is not indicative of Mr. Breytman's innocence. The defendant explains that a condition precedent to asserting a claim for malicious prosecution is that the underlying matter was adjudged on its merits. Therefore, the defendant argues that Mr. Breytman cannot assert malicious prosecution since the underlying criminal action was not adjudicated on its merits and no finding of guilt or innocence was made.
The defendant also recounts that the Non-City defendants' motion seeking dismissal for the remaining cause of action for false arrest was also granted on appeal. The Appellate Division held that the trial judge should have granted the summary judgment motions brought by both the City and the Non-City defendants. Among other things, the Court held that Mr. Breytman had failed to prove that the dismissal of the counterclaims the defendant asserted against him prejudiced him. Mr. Breytman appealed these decisions to the New York Court of Appeals and the US Supreme Court, but the appeals were not entertained by either Court.
In the defendant's opinion, as a matter of law, res judicata has attached and Mr. Breytman should be precluded from re-litigating the causes of action for "malicious prosecution and false arrest against the proposed additional defendants." The defendant also contends that even assuming Mr. Breytman's additional claims "were not barred by res judicata, they would be barred by the applicable statute of limitations." The defendant notes that the causes of action asserted should have been brought within one year and that these "additional claims arose by necessity prior to January 2003." The defendant, therefore, urges the court to deny Mr. Breytman "leave to amend the Amended Complaint" to add these causes of action and defendants.
The court notes that Mr. Breytman failed to submit a reply to the defendant's opposition. Mr. Breytman's initial motion seeking an order of the court dismissing the previous order due to the erroneously filed notice of entry and for failure to file the original notice of entry in the right court is hereby denied. "Where the entry of a judgment does not conform with the original decree of award of the court it may be made to do so at any time, on discovery of omission or error nunc pro tunc' (Re Munro's Estate, 15 Abb.Prac. 363, 366 [1863])" (see Huot v Dworman, 13 Misc 2d 104, 105 [1958]; see also South American Exchange v Epic Sec. Corp., 243 AD2d 405, 405 [1997]). It follows that a ministerial error in the filing of a notice of entry of a court order, as here, cannot be fatal to the order. In any case the matter is moot as the defendant has already cured that ministerial defect committed in the filing of the notice of entry (id.).
Mr. Breytman's second motion which seeks leave to amend his amended complaint to add causes of action as well as new defendants also fails. "The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding" (see Schloss v Jones, 67 AD3d 770, 770 [2009]; Mahler v Campagna, 60 AD3d 1009, 1011 [2009]; Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677 [2006]). As a practical matter, where 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 on different theories or if seeking a different remedy" (see Fitzgerald v Hudson Nat.Golf Club, 35 AD3d 533 [2006]; see also O'Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]).
The causes of action for malicious prosecution and false arrest as well as the proposed defendants to be added to the caption here were included in the related action Mr. Breytman filed in New York County. That action was dismissed as against these defendants. Mr. Breytman cannot now turn around and relitigate those same causes of action for false arrest and malicious prosecution, neither can he add these defendants to the instant action. Mr. Breytman's claims are barred.
In any event, it is well settled that "to recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was resolved in his favor" (see Hollander v Trump Vil. Coop., 58 NY2d 420, 426 [1983]). It is also well established that "a criminal action is terminated in the accused's favor for purposes of a malicious prosecution claim "where the final disposition of the proceeding involves the merits and indicates the accused's innocence" (see MacFawn v Kresler, 88 NY2d 859, 860 [1996]; see also Ward v Silverberg, 85 NY2d 993, 994 [1995]; Hollender v Trump Vil. Coop., 58 NY2d 420, 461, supra).
Notably, where the action was dismissed in the interest of justice, as here, and was not a "judicial determination of the accused's innocence on the merits," and "[i]n the absence of a favorable resolution, an action for malicious prosecution may not be maintained" (see Ward v Silverberg, supra at 994). The question of guilt or innocence remains unanswered and Mr. Breytman cannot prosecute a malicious prosecution action under these circumstances (see generally Ryan v New York Tel. Co, 62 NY2d 494 [1984]).
Accordingly, Mr. Breytman's motion seeking dismissal of the order because of the error in filing the notice of entry is denied. Similarly, Mr. Breytman's second motion seeking to add asserted against the same defendants, and to add these defendants to the instant action is also denied.
The foregoing constitutes the decision and order of the court.
E N T E R
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yvonne lewis, JSC