Opinion
May 28, 1992
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
The IAS court correctly dismissed this third action brought by plaintiffs as barred by the doctrine of res judicata. All three actions, while asserting legal theories that differ in some respects, are predicated on the same set of facts, namely, the improper towing of the plaintiffs' vehicles from the cooperative garage owned by the defendants. The chief participants and parties in all three actions are the same, with the exception of the City of New York, dismissed by court order as the party-defendant in the second action. In the first action, a judgment has been entered in favor of plaintiffs directing defendants to return plaintiffs' automobiles and giving plaintiffs the right to bring a plenary action for incidental damages only.
It is well settled that 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 different remedies (O'Brien v City of Syracuse, 54 N.Y.2d 353, 357).
In any event, apart from the doctrine of res judicata, this third action was properly dismissed for failure to state a cause of action for negligent or intentional infliction of emotional distress or for prima facie tort, since the conduct complained of was not so extreme and outrageous as to transcend the bounds of decency and be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143). Furthermore, there is no allegation of special damages (ATI, Inc. v. Ruder Finn, 42 N.Y.2d 454, 458) put forth with sufficient particularity to identify actual losses causally related to the alleged tortious acts (Luciano v. Handcock, 78 A.D.2d 943, 944). Damages may not be recovered for mental distress caused by malicious or negligent destruction of personal property (Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 921; cf., Curtin v. Bowery Sav. Bank, 150 A.D.2d 327).
Plaintiffs' argument based on Real Property Law § 223-b, entitled "Retaliation by landlord against tenant", cannot be entertained, since made for the first time on appeal, and is, in any event, without merit, since plaintiffs never claimed damages for a retaliatory eviction in any of the three actions, and there has never been a determination that the towing of their vehicles was a retaliatory eviction for their efforts to secure rights under a lease (compare, Kumble v. Windsor Plaza Co., 161 A.D.2d 259, lv denied 76 N.Y.2d 709). All that has been determined is that defendants' towing of plaintiffs' vehicles was in violation of Real Property Law § 232-a and RPAPL 711.
We have reviewed the plaintiffs' remaining claims and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Kassal and Rubin, JJ.