Opinion
13807 Index No. 32111/18E Case No. 2020-02971
05-11-2021
Odile Altagracia MARTINEZ, Plaintiff–Respondent, v. JRL FOOD CORP., doing business as Keyfood Supermarket, et al., Defendants–Appellants.
Chartwell Law, New York (Andrew Furman of counsel), for appellants. Della Mura & Ciacci, LLP, Bronx (Joshua Annenberg of counsel), for respondent.
Chartwell Law, New York (Andrew Furman of counsel), for appellants.
Della Mura & Ciacci, LLP, Bronx (Joshua Annenberg of counsel), for respondent.
Gische, J.P., Kapnick, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered June 2, 2020, which denied defendants’ motions to dismiss the complaint, unanimously affirmed, without costs.
Res judicata, or claim preclusion, precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties, involving the same subject matter; the doctrine applies even if the later claim is based on a different theory or seeks a different remedy, so long as it arises out of the same transaction ( see Matter of Josey v. Goord, 9 N.Y.3d 386, 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007] ). "A stipulation to discontinue with prejudice does carry res judicata authority, but a party cannot be precluded from raising an issue in his [or her] own right in subsequent litigation, absent some privity to the proceedings disposing of the prior claim" ( Rossi v. Twinbogo Co., 193 A.D.2d 481, 483, 597 N.Y.S.2d 390 [1st Dept. 1993] [internal citations omitted], lv dismissed 82 N.Y.2d 889, 610 N.Y.S.2d 154, 632 N.E.2d 464 [1993] ).
The issues involved in plaintiff's prior actions compared to the instant action concern different factual predicates and, therefore, the instant action is not barred by the doctrine of res judicata (see Silberstein, Awad & Miklos, P.C. v. Spencer, Maston & McCarthy, LLP, 43 A.D.3d 902, 903, 841 N.Y.S.2d 623 [2d Dept. 2007], lv dismissed 10 N.Y.3d 805, 857 N.Y.S.2d 34, 886 N.E.2d 798 [2008] ; Vigliotti v. North Shore Univ. Hosp., 24 A.D.3d 752, 754, 810 N.Y.S.2d 82 [2d Dept. 2005] ). In the prior two actions plaintiff's counsel had misunderstood where the accident occurred. After discovering the error, plaintiff stipulated to discontinue the prior actions, since she had commenced the actions against parties believed to have ownership and control of the incorrect premises. The instant action was commenced once plaintiff's counsel discovered the true accident location. Moreover, the most natural understanding of the language "with prejudice" in the stipulations discontinuing the prior actions is that litigation concerning an accident that occurred at the incorrect premises would be discontinued; the stipulation was not that the negligence claim as to the accident itself would be discontinued. The language "with prejudice" is narrowly interpreted in the interests of justice or the particular equities involved (see Employers’ Fire Ins. Co. v. Brookner, 47 A.D.3d 754, 756, 850 N.Y.S.2d 554 [2d Dept. 2008] ). Nor is this action barred under CPLR 3217(c) because the two prior actions were discontinued for good cause and clearly not for harassment purposes ( Tortorello v. Carlin, 162 A.D.2d 291, 556 N.Y.S.2d 879 [1st Dept. 1990] ).
Furthermore, there is no evidence that the motion court improvidently exercised its discretion in declining to convert defendant Weinberg Jerome LLC's motion to dismiss as one for summary judgment. "[T]he record does not establish that the parties deliberately chart[ed] a summary judgment course" ( Wadiak v. Pond Mgt., LLC, 101 A.D.3d 474, 475, 955 N.Y.S.2d 51 [1st Dept. 2012] [internal quotation marks omitted]).