Opinion
Index 151379/2016
02-28-2022
MAX EMBER, Plaintiff(s), v. CHARLENE DENIZARD, DANIELLE BIRKENFELD ROGER BROWN, MICHAEL HOWARD SAUL, 65 WEST 95TH OWNERS CORP., FENWICK KEATS MANAGEMENT, INC., AND RJ. PANDA, Defendant(s).
Unpublished Opinion
PRESENT: HON. LEWIS J. LUBELL, J.S.C.
DECISION & ORDER ON MOTION
HON. LEWIS J. LUBELL, J.S.C.
Defendants Gharlene Denizard, Danielle Birkenfeld, Roger Brown, 65 West 95th Owners Corp., Fenwick Keats Management, Inc., and R.J. Panda move (Motion #3) for summary judgment.
Plaintiff previously discontinued the action as against defendant Michael Howard Saul.
The following papers filed on NYSCEF were read on the motion: Doc. Nos.
Notice of Motion, Affirmation, Affidavits (4), and Exhibits (14) 149-168
Affirmation in Opposition and Exhibits (28) 171-201
Affirmation in Reply and Exhibits (8) 204-212
By way of background, plaintiff is a shareholder and proprietary lessee of an apartment (Apartment) in a cooperative building known as 65 West 95lh Street, New York, New York, which is owned and operated by defendant 65 West 95th Owners Corp. (Coop). Defendants Charlene Denizard, Danielle Birkenfeld, and Roger Brown are current and former officer and board members of the Co-op. Defendant Fenwick Keats Management, Inc. (Fenwick) is the managing agent of the Co-op. Defendant R.J. Panda is a former employee of Fenwick. During the winter of 2013-2014, plaintiff repeatedly complained to defendants about inadequate heating in the Apartment.
On July 14, 2014, plaintiff commenced an action in New York Supreme Court against Charlene Denizard, Danielle Birkenfeld, Roger Brown, Michael Howard Saul, 65 West 95th Owners Corp., Fenwick Keats Management, Inc., and R.J. Panda under index number 65142/2014 (SC Action). The complaint in the S.C. Action alleged, among other things, that the lack of heat and non-working heating system, "are, and continue to be, dangerous, hazardous and/or detrimental to Plaintiffs life, health and safety" (SC Action Complaint ¶ 14).
In January 2015, the Co-op commenced an action in Housing Court against plaintiff relating to the alleged non-payment of the monthly maintenance fees for the Apartment under index number 051752/2015 (L&T Action).
On October 26, 2015, the parties to the S.C. Action and the L&T Action entered into a stipulation of settlement. On November 2, 2015, the parties signed a stipulation of discontinuance with prejudice in the S.C. Action.
On February 22, 2016, plaintiff commenced the instant action. The complaint alleges, among other things, that the lack of heat and non-working heating system "we're dangerous, hazardous and detrimental to Plaintiffs life, health and safety causing the Plaintiff to sustain injuries and damages . . . ." Specifically, the complaint alleges that defendants' failure to fix and repair the heating system caused irreparable damage to plaintiff s lungs (First Cause of Action). Aside from this, the complaint in the instant action and the complaint in the S.C. Action are virtually identical.
Defendants moved (Motion #1) to dismiss the action, contending, among other things, that the instant action arises from the same facts and circumstances as the S.C. Action and that this action should be dismissed based on the doctrine of res judicata. Subsequently, the Court (per Hon. Lucy Billings, J.S.C.) granted defendants' motion, holding that res judicata barred the instant action. Plaintiff filed an appeal, challenging only the Court's dismissal of the First Cause of Action, and the First Department reversed, explaining that "[w]hether or not the lung condition 'could have been asserted' in the prior Supreme Court action requires fact-finding and is not appropriately determined on a motion to dismiss" (Ember v Denizard, 160 A.D.3d 537, 538 [1st Dept 2018]). Thereafter, the parties engaged in discovery and, upon the completion of discovery, plaintiff filed a note of issue. Now, defendants move (Motion #3) for summary judgment.
On a motion for summary judgment, the Court is to determine whether triable issues of fact exist or whether judgment can be granted to a party on the proof submitted as a matter of law (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as a matter- of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
In support of the motion, defendants proffer, among other things, affidavits from . Charlene Denizard, Danielle Birkenfeld, Roger Brown, R.J. Panda, as well as the deposition transcript of plaintiff. Defendants note that plaintiff testified that as early as January 23, 2014, plaintiff was ill or claiming to be ill due to the lack of heat in the Apartment. Defendants contend that the lack of heat was not a latent defect and thus, even if plaintiff discovered his lung injury after the discontinuance of the S.C. Action, it would not form a basis to undo the parties' stipulation of settlement.
Defendants have made a prima facie showing that the instant action is barred by .the doctrine of res judicata (see Schwartzreich v E.P.C. Carting Co., Inc., 246 A.D.2d 439, 441 [1st Dept 1998]). As such, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 557 [1980]).
In opposition, plaintiff contends that the instant action is not barred by res judicata for several reasons. Initially, plaintiff contends that defendants are precluded from arguing that the First Cause of Action is barred by res judicata because of the First Department's decision, which constitutes the law of the case. Plaintiff asserts that, when the First Department asserted that "fact-finding" was required, it was not referring to discovery, but to atrial. In addition, plaintiff contends that, although he was ill in January 2014 because of the complained of heating conditions, he was not ill with the various lung conditions that he suffered later. Further, plaintiff contends that there is not an identity of issues in the instant action and the S.C. Action because plaintiff did not allege lung injuries in the S.C. Action.
Plaintiff has failed to raise a material issue of fact or present any other basis to deny defendants' motion. Plaintiffs contention that the First Department found a material issue of fact requiring a trial is unavailing. Initially, the Court is not persuaded that the First Department's use of the term "fact-finding" amounted to a finding that a material issue of fact existed. Regardless, the law of the case doctrine is inapplicable here. The doctrine" 'applies only to legal determinations that were necessarily resolved on the merits in the prior decision'" (Grullon v City of New York, 297 A.D.2d 261, 265-66 [1st Dept 2002], quoting Baldasano v Bank of New York, 199 A.D.2d 184, 185 [1st Dept 1993]), The only, issue before the First Department was whether the instant action was properly dismissed on the basis of res judicata; On the record before it, the First Department found this issue was not appropriately determined on a motion to dismiss. By contrast, the Court is now presented with a motion for summary judgment after the parties have fully engaged in discovery.
Plaintiffs contention that the instant action is not barred by res judicata because the specific injuries to his lungs were only diagnosed after the S.C. Action was discontinued is also unavailing. It is well settled that the doctrine of res judicata bars all claims "arising out of the same transaction or series of transactions as a claim that was previously resolved on the merits and which the party opposing preclusion had a full and fair opportunity to litigate" (Platon v Linden-Marshall Contr. Inc., 176 A.D.3d 409, 410 [1st Dept 2019]). As such, "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" (id.). It is also well settled that "a stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits" (Schwartzreich v E.P.C. Carting Co., Inc., 246 A.D.2d 439, 441 [1st Dept 1998]).
Here, there can be no dispute that plaintiffs alleged lung injuries arise out of the same facts and circumstances as the S.C. Action. In both cases, plaintiff claims that defendants failed to properly maintain the heating system in the Apartment in the winter of 2013-2014 and that this was detrimental to his health. Plaintiffs deposition testimony makes it plain that as early as January 2014, plaintiff believed that he was ill because of the issues relating to the heating system. That he may not have fully understood the extent of the illness until after the discontinuance of the S.C. Action, while unfortunate, does not protect the instant claim from the doctrine of res judicata. For purposes of res judicata, the proper inquiry is whether plaintiff had sufficient knowledge to raise the cause of action (Veleron Holding, B. V. ex rel. OJSC Russian Machines v Stanley, 151 A.D.3d 597, 598 [1st Dept 2017]), Plaintiff admittedly knew he had suffered some illness, allegedly as a result of the issues relating to the heating system. As such, the instant action is barred by the doctrine of res judicata. .
To the extent not specifically addressed herein, the Court finds plaintiff s remaining arguments relating to the doctrine of res judicata to be without merit. Based on the foregoing, it is hereby
ORDERED that defendants' motion (Motion #3) is GRANTED and the action is therefore DISMISSED.