Opinion
84195/05
09-22-2011
Psychology YM P.C. a/a/o Christine Johnson, Plaintiff, v. Travelers Property Casualty Ins. Co., Defendant.
Attorneys for Defendant: Law Offices of Karen C. Dodson. Attorneys for Plaintiff: Gary Tsirelman, Esq.
Attorneys for Defendant: Law Offices of Karen C. Dodson.
Attorneys for Plaintiff: Gary Tsirelman, Esq.
Katherine A. Levine, J.
This motion was submitted solely on the issue of whether collateral estoppel or issue preclusion applies in this case.
Plaintiff Psychology YM P.C. ("plaintiff" or "Psychology YM"), a medical services provider, seeks to recover $979.40 for psychological testing and other services it provided to its assignor Christine Johnson ("assignor" or "Johnson") following injuries that she allegedly sustained in an automobile accident. Plaintiff filed this complaint on or about August 30, 2005. Defendant Travelers Property Casualty Ins. Co. ("defendant" or "Travelers") joined issue by service of an answer and discovery demands on September 28, 2005. Defendant now moves for summary judgment on the basis of collateral estoppel or issue determination because another court determined that the assignor's injuries did not arise as a result of the accident.
On January 4th, 2007, the Hon. Anna Culley presided over the case of Orlin & Cohen Orthopedic Assoc. AAO Christine Johnson v. Travelers Property & Casualty, Index No 102796/05 (Civ. Ct., Queens Co.)("Queens trial"). The assignor and the defendant Travelers Property Casualty Ins. Co. ("defendant" or "Travelers") are the same in both the Queens and instant proceeding whereas the assignee plaintiff and counsel for plaintiff are different in the two proceedings.
Defendant contended at the Queens trial that there was no coverage since the assignor's injuries did not arise out of a motor vehicle accident. Defendant presented as its witness its insured who was operating the vehicle at the time of the alleged accident and who testified that he never struck the pedestrian who was the claimant (assignor) in the case. He also testified that it was a shopping cart and not another car that struck his vehicle and that when he got out of the car the assignor - who was the operator of the other vehicle - was just standing there. At the end of the trial, the court granted a directed verdict to defendant based on the testimony of its witness. The court found that based upon "common sense and circumstantial evidence, the fact that she (assignor) was not clutching any part of her body or laying on the ground leads this court to believe that she was not struck by the cart nor the defendant's witness' vehicle." The court found that the claimant's injuries did not arise as a result of a motor vehicle accident. Neither side presented the assignor as a witness. (See transcript of trial before Judge Culley dated 1/7/2007 annexed as Exhibit "C" to defendant's motion).
The doctrine of res judicata serves to preclude a party from relitigating issues of fact and law decided in a prior proceeding. Gramatan Home Investors v Lopez, 46 NY2d 481 (1979); Rosen v. Levy, 2008 NY Slip Op. 50467(U); 19 Misc 3d 1101(A)(Sup. Ct., Bronx Co. 2008). Res judicata "operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding". Luscher v. Arrua, 21 AD3d 1005 (2nd Dept. 2005); Koether v Generalow, 213 AD2d 379, 380 (1st Dept. 1995). Res judicata will only apply if there has been a final judgment on the merits. However, "[t]his form of claim preclusion applies to all issues and theories of recovery applicable to the cause of action, whether or not they were actually litigation." Alphonso Lewis v. City of New York, 17 Misc 3d 537, 541-42 (Sup. Ct., Bronx Co. 2007).
Collateral estoppel, or issue preclusion, is a corollary to the doctrine of res judicata and "bars the relitigating of an issue which was actually and necessarily previously decided in a prior proceeding" (Alphonso Lewis, supra, 17 Misc 3d at 542)and decided against that party or those in privity, regardless of whether the tribunals or causes of action are the same. Koch v Consolidated Edison Co., 62 NY2d 548, 554 (1984); Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 (1985). See, Ryan v. New York Tel. Co., 62 NY2d 494, 500-01 (1984). Restatement [Second] of Judgments § 27. The issue must have been essential to the decision rendered in the first action and must be the point to be decided in the second action such that "a different judgment in the second would destroy or impair rights or interests established in the first." Ryan, supra at 501, citing Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304, 307 (1929).
"The equitable doctrine of collateral estoppel is grounded in the facts and realities of particular litigation, rather than rigid rules." Buechel v. Bain, 97 NY2d 295, 303 (2001). Collateral estoppel is an "elastic doctrine" and the "fundamental inquiry" must be "whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties" and the conservation of resources. Staatsburg Water Co. v Staatsburg Fire Dist.. 72 NY2d 147, 153 (1988). The proponent of collateral estoppel must show that (1) there was a full and fair opportunity to contest the decision that is alleged to be dispositive in the present action and (2) the issue in the present proceeding is identical to that decided in the present proceeding". Gramatan Home Investors, supra, 46 NY2d at 484; Langdon v. Wen Mgmt Co., 147 AD2d 450, 452 (2d Dept. 1989). See, Allied Chemical v. Niagara Mohawk Power Corp., 72 NY2d 271, 276 (1988); A.B. Medical Services PLLC v. State Farm Mutual Auto, 2006 NY Slip Op 50598(U), 11 Misc 3d 1077(A) (Civil Ct., Kings C., 2006).
A determination as to whether a full and fair opportunity was provided requires consideration of the "realities of the prior litigation" including the importance of the claim in the prior litigation, the incentive and initiative to litigate, the competence and expertise of counsel and the forseeability of future litigation. Ryan, supra at 501. Gilberg v. Barbieri, 53 NY2d 285, 292 (1981). See, SZ Medical, P.C., Life Chiropractic, P.C. v. Erie Ins. Co., 2009 NY Slip Op 51222(U), 24 Misc 3d 126(A)(App. Term, 2d, 11th & 13th Judicial Dists., 2009).
Furthermore, for collateral estoppel to apply, the proponent must establish that the plaintiffs, who were not parties to the previous actions, "are privy to the prior judgment". Green v. Santa Fe Industries, Inc., 70 NY2d 244. The determining factor is the point in time when the relationship between the party to the prior litigation an the person(s) claimed to be a privy is formed." A.B Medical Services, Inc., supra. In the context of the assignor-assignee relationship, "privity must have arisen after the event out of which the estoppel arises." Gramatan Home Investors, supra, 46 NY2d at 486 . Since the assignor-assignee relationship "denotes a mutually successive relationship of the same rights to same property:
"An assignee is deemed to be in privity with the assignor where the action against the assignor is commenced before there has been an assignment. In that situation, at the time the assignee succeeded to the rights of the assignor, the subject matter of the assignment was embroiled in litigation and was subject to the claims of third parties and the assignee is charged with notice that his rights to the assignment are subject to competing claim. Conversely, aa assignee is not privy to a judgment where the succession to the rights affected thereby has taken place prior to the institution of the suit against the assignor."Gramatan, supra at 486.
However, other than the time factor listed above, privity, within the context of collateral estoppel, "is an amorphous concept, not easy of application," and includes "those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] co-parties to a prior action." Juan C. v. Cortines, 89 NY2d 659, 667-68 (1997). In the end, a court must analyze whether "the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate." Buechel, supra, 97 NY2d at 304-05.
In Magic Recovery Medical & Surgical Supply, Inc. V. State Farm, 27 Misc 3d 67 (App. Term. 2d Dept. 2010), the defendant insurance company obtained a declaratory judgment on default in Supreme Court which absolved defendant of its contractual duty to indemnify any person seeking a monetary recovery arising from alleged automobile accidents in April and June 2000 on proof that the incidents were staged to defraud defendant. This judgment was obtained nearly two years after an assignment had been made and plaintiff assignee had submitted its claims for medical treatment and before plaintiff commenced the instant action. The Appellate Term denied defendants motion for summary judgment based upon collateral estoppel. Finding that the "plaintiff ...was neither named nor served in the declaratory judgment actions, nor, at the time, was in privity with someone who was, and the plaintiff otherwise had no full and fair opportunity to appear and defend its interests in those proceedings". 27 Misc 3d at 68-69.
Similarly here, the court possesses grave doubts as to whether any privity exists between the plaintiff medical provider in the Queens action and the instant plaintiff. In terms of the time factor, it appears that the Queens action was filed approximately one and a half months after the Kings County action was filed, although neither party articulated when the actual assignments were made in the two cases. Each assignee is a successor to a different claim from the assignee as the assignees are different medical service providers. Neither assignee had any control over the others' court actions; they are not co-parties in either actions and their interests are not represented by a co-party to either action.
Above and beyond the issue of privity, the instant plaintiff had no opportunity, much less a full and fair opportunity, to appear and defend itself in the Queens proceeding. The record made before Justice Culley is bereft of any explanation as to why the assignor was not presented as a witness to combat defendant's allegation that she was not involved in an accident. The court is unable to ascertain whether the assignee refused to show up or was not even contacted by the plaintiff in the Queens action due to strategic reasons or less than vigorous advocacy. Furthermore, plaintiff herein should not be deprived of its right to litigate all issues in the instant matter, including mounting a vigorous defense to defendant's contention that the assignee was not involved in a covered accident.
In light of the above, defendant's motion is denied and this case shall proceed to trial.
This constitutes the decision and order of the court.
Katherine A. Levine
Judge, Civil Court