Opinion
458-, 459-, 460-, 461-, 462-, 463 Index No. 300046/19 Case No. 2022-01616, 2022-01668, 2022-01669, 2022-01670, 2022-01671, 2022-04248
06-13-2023
Randall WILTZ, Plaintiff–Appellant, v. NEW YORK UNIVERSITY et al., Defendants–Respondents.
Randall Wiltz, Astoria, appellant pro se. Hogan Lovells U.S. LLP, New York (Ira M. Feinberg of counsel), for New York University, Erin Lynch, Franklin Diaz, Cushman & Wakefield, Inc., and Michael Broderick, respondents. Jackson Lewis P.C., New York (Daniel D. Schudroff of counsel), for Collins Building Services, Inc., and Angel Perlaza, respondents.
Randall Wiltz, Astoria, appellant pro se.
Hogan Lovells U.S. LLP, New York (Ira M. Feinberg of counsel), for New York University, Erin Lynch, Franklin Diaz, Cushman & Wakefield, Inc., and Michael Broderick, respondents.
Jackson Lewis P.C., New York (Daniel D. Schudroff of counsel), for Collins Building Services, Inc., and Angel Perlaza, respondents.
Kapnick, J.P., Friedman, Gesmer, Gonza´lez, Pitt–Burke, JJ.
Orders, Supreme Court, Bronx County (Wilma Guzman, J.) entered on or about September 23, 2021, which granted defendants’ motions to dismiss the complaint, denied plaintiff's motion for leave to amend the complaint, and denied, sub silentio, plaintiff's motion for a default judgment against defendant Franklin Diaz, unanimously affirmed, without costs. Order, same court (Julia I. Rodriguez, J.), entered on or about November 4, 2021, which denied plaintiff's motion to compel defendants to respond to discovery demands, unanimously affirmed, without costs.
Supreme Court properly dismissed the complaint on the grounds of res judicata (claim preclusion), as plaintiff's state law claims in this case could or should have been advanced in the prior federal action ( Wiltz v. New York Univ., 2019 WL 8437456, 2019 U.S. Dist LEXIS 220563 [S.D.N.Y., Dec. 23, 2019, No. 1:19–cv–03406 (GHW)(SDA)], report and recommendation adopted 2020 WL 614658, 2020 U.S. Dist LEXIS 22866 [S.D.N.Y., Feb. 10, 2020, No. 1:19–cv–03406–GHW], appeal dismissed 2020 WL 8839487, 2020 U.S. App. LEXIS 41705 [2d Cir., Sep. 23, 2020, No. 20–878] ; see Rojas v. Romanoff, 186 A.D.3d 103, 107, 128 N.Y.S.3d 189 [1st Dept. 2020] ). In his complaint in that federal action, which he interposed against defendants under various federal statutes before the United States District Court for the Southern District of New York, plaintiff asserted causes of action all based on the same operative facts as alleged in this case, and the District Court dismissed those claims for failure to state a claim upon which relief may be granted ( Wiltz, 2019 WL 8437456, *6, 2019 U.S. Dist LEXIS 220563, *16 ). This dismissal constituted a judgment on the merits for res judicata purposes (see Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 [1981] ; McLearn v. Cowen & Co., 48 N.Y.2d 696, 698–699 & n., 422 N.Y.S.2d 60, 397 N.E.2d 750 [1979] ).
That the complaints in the state and federal actions set forth different theories of recovery, and that the claims in this action were not actually raised in the federal action, does not foreclose application of the doctrine (see Wietschner v. Dimon, 139 A.D.3d 461, 462, 32 N.Y.S.3d 77 [1st Dept. 2016], lv denied 28 N.Y.3d 901, 2016 WL 4695160 [2016] ). Nor is this conclusion affected by the fact that the District Court declined to exercise supplemental jurisdiction over any state law claims that plaintiff may have raised in the prior federal action, since plaintiff did not actually assert any such claims in the federal action despite having a full and fair opportunity to litigate them ( Wiltz, 2019 WL 8437456, *19, 2019 U.S. Dist LEXIS 220563, *55 ; see e.g. Bradshaw v. City of New York, 200 A.D.3d 553, 553, 155 N.Y.S.3d 335 [1st Dept. 2021], lv denied 38 N.Y.3d 907, 2022 WL 1633831 [2022] ; Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 635–636, 58 N.Y.S.3d 42 [1st Dept. 2017] ).
Plaintiff's motion for leave to amend his complaint was properly denied since he did not provide "the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" ( CPLR 3025[b] ; see e.g. Fernandez v. HICO Corp., 24 A.D.3d 110, 111, 804 N.Y.S.2d 246 [1st Dept. 2005] ). In any event, leave to amend would have been futile (see Quire v. City of New York, 210 A.D.3d 448, 449, 175 N.Y.S.3d 898 [1st Dept. 2022] ). Similarly, Supreme Court properly denied plaintiff's motion for a default judgment against defendant Diaz, as Diaz showed that the alleged service upon him was defective and that the defective service constituted a reasonable excuse for his default (see Equicredit Corp. of Am. v. Campbell, 73 A.D.3d 1119, 1121, 900 N.Y.S.2d 907 [2d Dept. 2010] ). Diaz also demonstrated the existence of a meritorious defense — namely, res judicata.
In light of the dismissal of the complaint, plaintiff's motion to compel discovery was properly denied as moot (see e.g. Flame S.A. v. Worldlink Intl. [Holding] Ltd., 107 A.D.3d 436, 438, 967 N.Y.S.2d 328 [1st Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6067977 [2013] ).
We have considered plaintiff's remaining arguments and find them unavailing.