Opinion
# 2016-016-024 Claim No. 111602 Motion No. M-87914
04-05-2016
KAREN STEPHENS v. THE CITY UNIVERSITY OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK AT QUEENS COLLEGE and THE STATE OF NEW YORK
Law Firm of Eleanor Vale Goldberg Segalla, LLP By: Brendan T. Fitzpatrick, Esq.
Synopsis
Case information
| UID: | 2016-016-024 |
| Claimant(s): | KAREN STEPHENS |
| Claimant short name: | STEPHENS |
| Footnote (claimant name) : | |
| Defendant(s): | THE CITY UNIVERSITY OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK AT QUEENS COLLEGE and THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 111602 |
| Motion number(s): | M-87914 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Law Firm of Eleanor Vale |
| Defendant's attorney: | Goldberg Segalla, LLP By: Brendan T. Fitzpatrick, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | April 5, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Karen Stephens, a student at Queens College, was walking along a pathway toward Razran Hall on November 13, 2003, when a gust of wind knocked over a temporary construction fence and struck her.
The fence had encircled Razran Hall, which was undergoing renovations. The Dormitory Authority of the State of New York (DASNY) managed construction on the Queens College campus for the City University of New York. The Dormitory Authority hired U.S.A. General Contractors as one of the general contractors on site. U.S.A. General, for its part, retained several subcontractors, including Sasco Waterproofing, which put up the fencing around Razran Hall.
Ms. Stephens brought suit in Supreme Court, Queens County against DASNY, U.S.A. General and Sasco (or the Sasco group of defendants), and in the Court of Claims against the City University. Subsequently, Orders were issued granting default judgements against the Sasco defendants; during the trial in Supreme Court, Justice Kevin J. Kerrigan dismissed the case against DASNY (see exhibit G of defendant's Affirmation in Support, pages 463 and 440).
Sasco Waterproofing Co., Inc., Sasco Construction Co., Inc., Sasco Construction NY Co., Inc., Sasco Builders, Inc., Sasco Restoration, Inc. and Sasco General Contracting Corp. (exhibit C of defendant's Affirmation in Support).
The defendants in the caption to Ms. Stephens' Court of Claims action are: "The City University of NY, The City University of NY at Queens College and the State of New York." The sole proper defendant is the City University of New York and accordingly, references herein will be to "defendant" in the singular.
Thus, when the case went to the jury, U.S.A. General was the only defendant; on February 1, 2012, the jury found that they were negligent and that such negligence caused Ms. Stephens' accident. The verdict was reversed by the Second Department, which granted judgment on the law to U.S.A. General: "[T]here was no evidence before the jury that USA had notice of, or created, the allegedly unsafe condition which caused the accident [citations omitted]" (Stephens v U.S.A. Gen. Contrs. Corp., 106 AD3d 989, 990 (2d Dept 2013), lv denied 22 NY3d 856 (2013). * * *
The City University moves here: i) to amend their answer to assert collateral estoppel and res judicata as affirmative defenses; and ii) for an Order dismissing the claim.
Courts often use a phrase like "res judicata and/or collateral estoppel" [State of New York v Zurich Am. Ins. Co., 106 AD3d 1222, 1223 [3d Dept 2013]). Strictly speaking, collateral estoppel is issue preclusion, and res judicata, claim preclusion (Siegel, New York Practice, 5th ed, supp 2015, § 443). They often overlap because foreclosing a particular issue may well foreclose the claim or suit as well.
Rule 3025(b) of the CPLR provides that "leave shall be freely given to amend" the pleadings at any later stage beyond the initial period when issue is joined. Such leave can be given to amend a pleading to include the affirmative defenses of res judicata and collateral estoppel (Scipio v Wal-Mart Stores East, L.P., 100 AD3d 1452 [4th Dept 2012]).
The Court of Appeals has held that there are two requisites that must be satisfied to invoke collateral estoppel: "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 relitigating the issue must have had a full and fair opportunity to contest the prior determination [citations omitted]" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [(1985]).
A Supreme Court case, in which, for example, a jury determines that plaintiff has not suffered a serious injury under the no-fault law more readily implicates res judicata/collateral estoppel for a parallel action in the Court of Claims because it represents a finding of fact independent of the acts of any party.
In Ms. Stephens' case, issues relating to the creation of a condition and notice thereof could create some daylight for arguing that res judicata/collateral estoppel does not apply. With that said, no such argument has been advanced; in fact, claimant Stephens presents no papers in opposition to City University's motion. In addition, it might be noted that Stephens has treated the two parallel actions as effectively unified - - see her joint bill of particulars with a double caption (exhibit C of defendant's Affirmation in Support). * * *
In view of the foregoing, and having reviewed what was submitted to the Court,
The Court reviewed from defendant: a Notice of Motion together with an Affirmation in Support (including exhibits A through L). As indicated above, claimant submitted no papers in opposition. --------
IT IS ORDERED that defendant's motion No. M-87914 is granted and claim No. 111602 is dismissed.
April 5, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims