Opinion
27796/01.
Decided December 20, 2004.
By notice of motion filed on November 26, 2003, defendants, LM Development, L.L.C., (hereinafter LM) and NYC Partnership Housing Development Fund Company, Inc. (hereinafter NPHDF) seek an order dismissing plaintiff's complaint and notice of pendency and an order sanctioning the plaintiff for prosecuting the instant lawsuit. Defendant Danois Architects, PC (hereinafter Danois) cross moves for an order granting summary judgment dismissing plaintiff's complaint and all cross claims brought against it. Plaintiff cross moves for an order vacating its default of December 21, 2001 before Justice Garry and opposes the defendants motions for dismissal and sanctions.
Plaintiff, Gwendoline Vincente, is the widow and administratix of the estate of Maurice Vincente. LM is a limited liability company organized under the laws of the State of New York and engaged in the business of real estate development. NPHDF is a not-for-profit housing sponsor and has its principal place of business in the State and County of New York. David Danois is a licensed architect and sole owner of the defendant company which bears his name.
An analysis of the salient procedural litigation history of the parties is necessary to address the parties respective motions. On April 11, 2000, the plaintiff commenced an action against LM and NPHDF by filing a summons and complaint with the Kings County Clerk Office (KCC). By order to show cause filed on April 13, 2000, plaintiff moved for a temporary restraining order and preliminary injunction barring LM and NPHDF from performing construction work at the real property known as 74 McDougal Street, Brooklyn, New York, Block 1531, Lot 13. In support of the claim for a preliminary injunction, plaintiff alleged that defendants' negligent construction work caused water flooding and other damage to her home which adjoined the property in question.
Plaintiff's complaint sought a permanent injunction barring defendant's LM and NPHDF from engaging in further construction. The complaint alleged a history of title transfers of the property known as 74 McDougal Street, Block 1531, Lot 13. Specifically, in 1984, the City of New York allegedly transferred the aforementioned property to plaintiff's husband, Maurice Vincente. Thereafter, plaintiff claims that she continually used the adjoining Lot 14 as a right of way for ingress and egress to her residence. In 1986, the City of New York transferred adjoining Lot 14 to Maurice Vincente and combined the two Lots into one Lot 13. Plaintiff came to learn that the City of New York took back title to Lot 14 by eminent domain and transferred title to same to defendant LM sometime in 1999. Plaintiff contends that defendants LM and NPHDF began construction work on Lot 14 which interfered with her easement.
Defendants LM and NPHDF cross move for an order dismissing plaintiff's complaint, and denying plaintiff's motions for a temporary restraining order and preliminary injunction contending that the underlying complaint fails to state a cause of action. On June 22, 2000, plaintiff's order to show cause and defendants' cross motion were scheduled for oral argument before Supreme Court Justice Vaughn. Plaintiff did not appear or submit opposition papers to defendants' motion. On June 22, 2000, Justice Vaughn marked plaintiff's order to show cause off calendar and granted defendants' motion to dismiss plaintiff's complaint with a direction to settle the order on notice. On July 11, 2000, Justice Vaughn signed the order dismissing plaintiff's complaint on default. On August 7, 2000, defendants served plaintiff a copy of the order dismissing plaintiff's complaint with notice of entry. Plaintiffs did not appeal Justice Vaughn's order dismissing the complaint.
On October 4, 2000, plaintiff moved by order to show cause to vacate the default of June 22, 2000 to defendant's summary judgment motion. On December 12, 2000, defendant's opposed plaintiff's request and cross moved for, among other things, a preliminary injunction. On November 9, 2000, Justice Vaughn signed an order in which plaintiff's order to show cause of October 4, 2000, and defendant's cross-motion of December 12, 2000, were withdrawn without prejudice. The order also covered an issue of plaintiff's alleged encroachment upon defendant's property.
On July 27, 2001, plaintiff again filed a notice of pendency against defendants' property. The allegations of fact in support of the notice of pendency made the same claim of interference of plaintiff's easement which were alleged in the dismissed action under index number 12651/00.
On August 2, 2001, plaintiff filed a new summons and complaint under the instant index number 27796/01 alleging two causes of action against defendants LM, NPHDF, Chase Manhattan Bank (hereinafter Chase) and Danois. The first cause of action alleged that defendants negligently constructed a dwelling on the lot next door to 74 McDougal Street, Brooklyn, New York which caused damaged to plaintiff's home. The second cause of action alleged that the defendants' negligent construction of the aforementioned property adjoining plaintiff's home interfered with plaintiff's easement.
By an amended notice of motion dated October 25, 2001, defendants LM and NPHDF sought an order to dismiss plaintiff's two causes of action and lis pendens based in part on the doctrine of transactional res judicata. Defendants also sought an order for sanctions against plaintiff for bringing what they alleged to be a frivolous action. Defendants' motion was adjourned to December 14 and then December 21, 2001. On December 21, 2001, Justice Garry granted defendants' motion on default and directed defendants to settle the order. Defendants served a notice of settlement of the order on all counsel. Defendants contend that they forwarded the notice of settlement of order and proposed order to their lawyers service agency for filing and submission to Justice Garry. For reasons unknown, the order was not signed by Justice Garry who has since retired from the bench.
By notice of cross motion filed with the KCC on December 5, 2003, plaintiff opposed LM and NPHDF's application and sought, among other things, an order relieving their prior default of December 21, 2001 before Justice Garry. By notice of cross motion filed with the KCC on December 18, 2003, defendant Danois sought an order granting summary judgment dismissing plaintiffs' complaint and all cross claims against Danois based on, among other things, the doctrine of transactional res judicata. Plaintiff opposed Danois application.
CPLR Rule 9002 provides in pertinent part that:
the death, sickness, resignation, removal from or expiration of office or other legal disability or incapacity of a judge following his verdict, report, decision or determination of a motion or special proceeding in any matter in a civil judicial proceeding shall not affect its validity. Unless otherwise provided by rule of the chief administrator of the courts, any other judge of the same court may, on the application of a party, give effect to such verdict, report, decision or determination and make and sign an appropriate order based thereon, which shall have the same effect as if it had been made by the judge upon whose verdict, report, decision or determination it is based.
It is well settled that a plaintiff seeking to vacate a default must demonstrate both a reasonable excuse for the default and the existence of a meritorious claim (see CPLR 5015(a)(1); Parker v. City of New York 272 AD2d 310 [2nd Dept 2000]; see also Putney v. Pearlman 203 AD2d 333 [2nd Dept. 1994]). The determination of what constitutes a reasonable excuse for default lies within the sound discretion of the trial court and in exercising that discretion the trial court may accept law office failure as an excuse (see CPLR 2005; Putney v. Pearlman supra., 203 AD2d at 333]). Drafters of statute governing vacation of default judgment did not envision that such section would provide an exhaustive list of the grounds for vacatur; rather, the courts would retain their discretionary power to vacate its own judgment for sufficient reason and in the interests of substantial justice (Goldman v. Cotter 10 A.D3d 289 [1st Dept. 2004]; Macias v. Motor Vehicle Acc. Indemnification Corp. 10 AD3d 396 [1st Dept. 2004]).
Plaintiff seeks to vacate the default judgment granted to defendants LM and NPHDF by Justice Garry's order of December 21, 2001. Plaintiff, however, is not seeking to vacate the default judgment of Justice Vaughn which dismissed plaintiff's earlier complaint under index number 12651/00. The excuse plaintiff offered for the December 21, 2001 default was the logistical difficulties occasioned by the September 11, 2001 terror attack on the World Trade Center. At that time, the law office of plaintiff's counsel was at 40 Broad Street. The attack caused a disruption of essential utility service and rendered the office temporarily inaccessible. Plaintiff claims he mailed the defendants, and filed with the court, an affidavit setting forth these facts in support of an adjournment. Plaintiff offered as a meritorious defense a tax map, photographs and a report evidencing damage to plaintiff's home caused by defendants' construction work.
Defendants LM, NPHDF and Danois all contend that plaintiff's pending cause of action must be dismissed under the doctrine of transactional res judicata. In particular, they allege that all claims that were brought or could have been brought under the earlier complaint filed under index number 12651/00 are barred by the dismissal of the first cause of action by Justice Vaughn's order of July 11, 2000. Defendants LM and NPHDF, also contend that Justice Garry already ruled in their favor on this very issue when it granted their motion for summary judgment dismissing plaintiff's complaint on default on December 21, 2001.
Plaintiff is response to the transactional res judicata contention is that the dismissal of plaintiff's complaint under index number 12651/00 by Justice Vaughn's order of June 11, 2000, was on default and not on the merits.
Pursuant to NY Ct. Rules 202.48 (b) a prevailing party directed to settle an order on notice must submit the order for the judges signature within sixty days or the motion shall be deemed abandoned, unless good cause is shown. It is within the sound discretion of the trial court to accept a belated order or judgment for settlement ( Russo v. Russo 289 AD2d 467 [2nd Dept. 2001]). Notwithstanding a parties failure to offer "good cause" for failing to timely settle an order pursuant to 22 NYCRR 202.48[b], if the facts of the case demonstrate that deeming the matter abandoned would not bring repose to court proceedings and would waste judicial resources, then the court may denying a request to do so ( Meaney v. Supermarkets General Corp. 239 AD2d 393 [2nd Dept 1997]; see also Crawford v. Simmons 226 AD2d 667 [2nd Dept 1996].
Here the defendants LM and NPHDF have offered no explanation for failing to follow through to settle Justice Garry's order of December 21, 2001. There is no explanation offered for Justice Garry not signing the order. What is undisputed, however, is that the plaintiff did not move to vacate the order of Justice Vaughn dismissing her earlier complaint on default under index number 12651/00. Thus, if defendants contention is correct that the current action is barred under the doctrine of transactional res judicata, it would be an abuse of discretion to vacate plaintiff's default of December 21, 2001 even in the absence of a showing of good cause. The court finds that Justice Garry's retirement from the bench did not vitiate his intent to dismiss plaintiff's complaint on default and the signing of an order reflecting this intent would be merely a ministerial act ( Kite v. Kite 274 AD2d 932-933, 934 [3rd Dept 2000]).
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 NY2d 353-356; see also Eagle Insurance Co. v. Facey 272 AD2d 399 [2nd Dept. 2000]). The doctrine is applicable to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding ( Sterling Doubleday Enter. v. Marro 238 AD2d 502 [2nd Dept. 1997]). Thus, a court order dismissing a complaint, is res judicata as to any claims which were raised or could have been raised in that proceeding ( Fireman's Ins. Co. v. Hopkins 244 AD2d 485 [2nd Dept. 1997]).
There is no dispute that Justice Vaughn's order of July 11, 2000, granted defendants LM and NPHDF summary judgment dismissing plaintiff's complaint under index number 12650/00. There is also no dispute that the order was neither vacated nor appealed. Plaintiff's underlying complaint alleged that the defendant's negligent construction work on property adjoining her home caused her property damage and interfered with her easement for ingress and egress from her home. Plaintiff's instant claims against defendants LM, NPHDF, Chase and Danois are based on the same transaction or series of transactions, namely, the damage to plaintiff's home caused by the defendants' negligent construction work on property adjoining her home. Since a default judgment CPLR 3211(a)(5) is a judgment on the merits, the action against LM and NPHDF must be dismissed on the ground of res judicata ( Martin v. Woods, 251 AD2d 465 [2nd Dept 1998]; see also Feeney v. Licari 131 AD2d 539 [2nd Dept. 1987]).
While the defendants, Chase and Danois, were not parties to the earlier commenced complaint, this fact is not controlling. In order for res judicata to come into play, it is necessary that "the party opposing preclusion must have had a full and fair opportunity to litigate the claim in the prior proceeding. However, it is well settled that a defendant who was not a party to a prior proceeding may nevertheless assert res judicata where its liability is altogether dependent upon the culpability of one exonerated in a prior suit. Thus, a person not a party to a prior action, but only derivatively or vicariously liable for the conduct of another, may invoke the res judicata effect of a prior judgment on the merits in that action in favor of the one primarily liable Marinelli Associates v. Helmsley-Noyes Co., Inc. 265 AD2d 1 [1st Dept. 2000]; see also New Paltz Cent. School District v. Reliance Ins. Co., 97 AD2d 566-567 [3rd Dept. 1983]).
Defendants Chase and Danois are alleged to have played a part in the negligent construction work in question although they were not parties to the earlier complaint. While the nature of their involvement is not clear from the pleadings, Chase, as a bank, and Danois, as an architectural firm, would, at best, be only incidentally involved in either the financing or design of the construction work in question. Their liability, if any, would be derivative to the acts or omissions of LM and NPHDF. Thus the dismissal of the earlier complaint against LM and NPHDF would also bar the current action against Chase and Danois under the doctrine of transactional res judicata.
Inasmuch as it would be a waste of judicial resources to deem defendants LM and NPHDF motion to dismiss plaintiff's complaint as abandoned pursuant to 22 NYCRR 202.48, the court will not do so. Therefore, the order of Justice Garry dated December 21, 2001 dismissing plaintiff's complaint against LM and NPHDF under index number is granted by this instant decision and order. The notice of pendency is vacated. Plaintiff's application to vacate its default of said order is denied and plaintiff's cause of action against Chase and Danois are dismissed pursuant to the doctrine of transactional res judicata.
The court now turns to defendants LM and NPHDF's request for sanctions against the plaintiff for commencing the instant action. Pursuant to the Rules of the Chief Administrator of the Courts as set forth in 22 NYCRR § 130-1.1(a), the court may award to any party or attorney in a civil matter costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct. Frivolous conduct is defined in § 130-1.1(c) and includes in pertinent part the appearance of an attorney in an action that is completely without merit in law undertaken to delay or prolong the resolution of litigation. The decision as to whether to award sanctions is within the sound discretion of the court ( Wagner v. Goldberg, 293 AD2d 527 [2nd Dept. 2002]). The court in the exercise of its discretion denies the request for sanctions finding that the dismissal of all the plaintiff's causes of action should bring repose to the matter.
The foregoing constitutes the decision and order of the court.