Opinion
# 2017-039-450 Claim No. 123050 Motion No. M-91079
12-05-2017
CAROL ARTIBEE and JAMES ARTIBEE v. THE STATE OF NEW YORK
Towne, Ryan & Partners, P.C. By: James T. Towne, Jr., Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Joan Matalavage Assistant Attorney General
Synopsis
Claimants commenced lawsuits in the Court of Claims and in Supreme Court, seeking damages arising from a car accident. Trial proceeded first in Supreme Court and concluded in a jury verdict in claimants' favor. Following the jury verdict, defendant in the Court of Claims action moved for an order permitting it to amend its answer to include the affirmative defense of collateral estoppel and an order dismissing the claim on that basis. The Court permitted defendant to amend its answer and also held that the doctrine of collateral estoppel applies to limit any award of damages in the Court of Claims to the amount awarded in Supreme Court. The Court declined, however, to dismiss the claim in its entirety because the record revealed that claimants had not been fully paid with respect to the Supreme Court verdict.
Case information
| UID: | 2017-039-450 |
| Claimant(s): | CAROL ARTIBEE and JAMES ARTIBEE |
| Claimant short name: | |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123050 |
| Motion number(s): | M-91079 |
| Cross-motion number(s): | |
| Judge: | JAMES H. FERREIRA |
| Claimant's attorney: | Towne, Ryan & Partners, P.C. By: James T. Towne, Jr., Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Joan Matalavage Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 5, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this claim, claimants seek damages arising from an accident that occurred on August 15, 2011 on State Route 9N (hereinafter SR 9N), near the intersection of Mohican Road, in the Town of Bolton, Warren County. Claimants allege that claimant Carol Artibee was driving her Jeep in a northbound direction on SR 9N when a tree limb fell onto her car, causing her injuries. Claimants assert that defendant was negligent with respect to the management, operation and control of the strip of land next to the roadway and the care, maintenance and management of the tree and its limbs and branches. Issue was joined, discovery is complete and a trial on the issue of liability is scheduled to commence on January 8, 2018.
The claim of claimant James Artibee is derivative.
In addition to this claim, claimants filed an action in Supreme Court, Warren County, against Home Place Corporation (hereinafter Home Place), the owner of the land abutting SR 9N in the area of the accident. In that complaint, they sought damages arising from the August 15, 2011 accident, alleging that Home Place was negligent with respect to the management, operation and control of the strip of land next to the roadway and the care, maintenance and management of the tree and its limbs and branches. A jury trial in that action was held and, on June 14, 2017, the jury rendered a verdict in favor of claimants and awarded damages in the amount of $1,129,000.00. Judgment was filed on July 12, 2017. Vermont Mutual Insurance Company (hereinafter Vermont Mutual), on behalf of Home Place, has issued payment to claimants in the amount of $1,071.834.09, representing payment for the amount that Vermont Mutual has characterized as the "undisputed portions of the verdict" (Affidavit in Support of Motion, Exhibit C, at Claim ¶ 24). A partial satisfaction of judgment has been filed.
Prior to the trial in that action, Home Place moved for a jury charge directing the apportionment of liability between defendant and the State. On this question, the Court of Appeals ultimately ruled that it was proper for Supreme Court to deny the instruction, as apportionment of fault to the State pursuant to CPLR 1601 (1) was not permitted in a Supreme Court action (see Artibee v Home Place Corp., 28 NY3d 739, 742-752 [2017]).
The record reflects that Vermont Mutual has filed a claim in the Court of Claims against defendant seeking indemnification and/or contribution with respect to the judgment entered in Supreme Court. In that claim, Vermont Mutual asserts that $66,154.00 of the jury's verdict is "still currently disputed" (Affidavit in Support of Motion, Exhibit C, at Claim ¶ 24).
By Corrected Notice of Motion dated September 22, 2017, defendant now moves for an order, pursuant to CPLR 3025(b), permitting it to amend its answer to include the affirmative defense of collateral estoppel and an order dismissing the claim on that basis pursuant to CPLR 3211(a)(5). Claimants oppose the motion, and defendant has submitted a reply.
This motion was returnable on October 4, 2017. By letter dated October 24, 2017, claimants requested permission to submit additional papers in opposition to defendant's motion. The Court, by letter dated November 2, 2017, denied the request.
Initially, the Court grants defendant's request for leave to amend its answer to assert the affirmative defense of collateral estoppel. "Leave to amend a pleading 'should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit' " (Loch Sheldrake Beach & Tennis Inc. v Akulich, 141 AD3d 809, 811 [3d Dept 2016]), lv dismissed 28 NY3d 1104 [2016]), quoting Edwards & Zuck, P.C. v Cappelli Enters., Inc., 124 AD3d 181, 183 [3d Dept 2014]; see CPLR 3025 [b]). Here, the affirmative defense of collateral estoppel is not wholly devoid of merit, as will be discussed further below. Moreover, claimants have not identified any specific prejudice arising from the delay, and the Court discerns no prejudice or surprise to claimants from the record.
The Court is unpersuaded by claimants' argument that the application should be denied as untimely. The Supreme Court action was not tried until June 2017 and judgment was not entered until July 2017. As a practical matter, defendant could not have been certain of the availability/viability of the affirmative defense of collateral estoppel until that time, and defendant's counsel promptly brought the issue to the Court's attention by letter dated July 18, 2017. To the extent that claimants argue that the motion is untimely because it was not filed within 60 days of the filing of the Note of Issue and Certificate of Readiness, the Court notes that the deadline cited by claimants on this point, which was set forth in a Preliminary Conference Order dated December 16, 2013, applied only to motions for summary judgment and did not mention motions to amend pleadings. In any event, the Court, under these circumstances, declines to deny the motion as untimely, pursuant to the deadline set forth in the Preliminary Conference Order, or otherwise. As such, defendant's motion is granted to the extent that it seeks leave to amend its answer.
Defendant also seeks dismissal of the claim pursuant to CPLR 3211 (a)(5) on the ground that the claim is barred by the doctrine of collateral estoppel. This doctrine "bars relitigation of an issue 'which has necessarily been decided in [a] prior action and is decisive of the present action' if there has been 'a full and fair opportunity to contest the decision now said to be controlling' " (Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199 [2008], quoting Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; see Marotta v Hoy, 55 AD3d 1194, 1196 [3d Dept 2008]). "[P]reclusive effect is limited to only those 'issues that were actually litigated, squarely addressed and specifically decided' " (Church v New York State Thruway Auth., 16 AD3d 808, 810 [3d Dept 2005], quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). "The party seeking application of collateral estoppel bears the burden of showing that the decisive, identical issue was 'necessarily decided' in the prior action, while the party opposing application of the doctrine must demonstrate the absence of a full and fair opportunity to contest the prior determination" (Church v New York State Thruway Auth., 16 AD3d at 809-810, quoting Buechel v Bain, 97 NY2d at 304). "The question of whether a litigant had a full and fair opportunity to contest the prior determination on those issues requires a case-by-case analysis of the realities of the prior litigation, 'including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination' " (Church v New York State Thruway Auth., 16 AD3d at 810, quoting Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]).
Here, the instant claim seeks damages arising from the same accident and the same injuries as the Supreme Court action. The only difference with respect to the damages aspect of these lawsuits is the identity of the defendants. The issue of claimants' damages arising from the accident was "actually litigated, squarely addressed and specifically decided" in the Supreme Court action (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d at 826), and claimants were afforded a full and fair opportunity to litigate that issue in Supreme Court. Thus, as claimants have obtained a judicial determination as to the issue of damages arising from the accident that occurred on August 15, 2011, they are therefore barred from relitigating that issue in the Court of Claims in an apparent attempt to obtain a greater recovery. Contrary to claimants' argument, defendant need not be in privity with Home Place in order to assert the doctrine of collateral estoppel as a defense (see e.g. Bell v New York State Dormitory Auth., 183 AD2d 530, 531 [1st Dept 1992] ["It is not required that the party who wishes to assert the doctrine have been one who would have been bound by the prior determination had it been unfavorable"]). Notwithstanding the relationship - or lack thereof - between defendant and Home Place, claimants are not permitted a second chance to prove a greater quantum of damages in another forum (see Bell v New York State Dormitory Auth., 183 AD2d at 531). As such, defendant's motion is granted inasmuch as the Court finds that the doctrine of collateral estoppel applies to limit any award of damages that claimants may recover against defendant in the Court of Claims to the amount awarded in Supreme Court (see O'Connor v State of New York, 126 AD2d 120, 125 [3d Dept 1987]; Seigel, NY Prac § 474 at 828 [5th ed 2011]). In other words, the judicial determination made in Supreme Court as to the issue of damages serves as a cap on any recovery by claimants in the Court of Claims.
The Court, however, declines to dismiss the claim in its entirety. Importantly, the record before the Court reflects that, as of the time this motion was filed, claimants had not been fully paid with respect to the Supreme Court jury verdict. In fact, Vermont Mutual, in their indemnity/contribution claim against defendant, represented that $66,154.00 of the verdict was in dispute. As such, it is at least conceivable that, if defendant is found liable in the instant action with respect to the accident and damages are awarded, claimants could recover from defendant the difference between the amount that they have been paid in satisfaction of the Supreme Court judgment and the Supreme Court jury award, up to the amount of the damages awarded in the Court of Claims (see Seigel, NY Prac § 474 at 828 [5th ed 2011] ["[W]hatever the first defendant may have paid in satisfaction of that first judgment will have to be credited against whatever judgment the plaintiff may recover for the same wrong against the other defendant"]). The Court notes that it would find differently if claimants had already been paid in full with respect to the jury award. In the Court's view, it would be a waste of judicial resources to hear a case where there is no conceivable benefit to claimants arising from the litigation.
Based upon the foregoing, the liability trial remains scheduled to commence on January 8, 2018. If liability is found, claimants' damages shall be capped at the amount awarded in Supreme Court.
Accordingly, it is
ORDERED that defendant's motion is granted to the extent that defendant is granted leave to amend its answer. Defendant is directed to electronically serve and file its amended answer within 10 days of the filing date of this Decision and Order; and it is further
ORDERED that defendant's motion is also granted inasmuch as the doctrine of collateral estoppel applies to limit any award of damages that claimants may recover against defendant in the Court of Claims to the amount awarded in Supreme Court; and it is further
ORDERED that defendant's motion is otherwise denied in all other respects.
December 5, 2017
Albany, New York
JAMES H. FERREIRA
Judge of the Court of Claims Papers Considered:
1. Corrected Notice of Motion dated September 22, 2017; 2. Affidavit in Support of Motion by Joan Matalavage, AAG, sworn to September 12, 2017, with attached exhibits; 3. Affidavit in Opposition by James T. Towne, Jr., Esq. sworn to September 27, 2017, with attached exhibits; 4. Memorandum of Law in Opposition by James T. Towne, Jr., Esq., dated September 27, 2017; and 5. Reply Affidavit by Joan Matalavage, AAG, sworn to October 2, 2017.