Opinion
No. 196/2014.
12-05-2014
Wayne ROSE, Plaintiff, v. CHAPEL BANKS INVESTMENTS, INC., Different Twist Pretzel Company–Global, LLC, The Maggio Corporation, August Peter Maggio, Joan Maggio, Reshma Shah, Whitehall Pretzel & Ice Cream, Inc., and Mohamed Shah, Defendants.
Wayne Rose, Brooklyn, Pro Se Plaintiff. Luc Ulmet, Esq., Kuzas Neu, PC, Red Bank, NJ, Attorney for Pretzel, Defendants. Andrew M. Croom, Esq., The Law Firm of Tomei & Associates, PC, Staten Island, Attorney for Shah, Defendants.
Wayne Rose, Brooklyn, Pro Se Plaintiff.
Luc Ulmet, Esq., Kuzas Neu, PC, Red Bank, NJ, Attorney for Pretzel, Defendants.
Andrew M. Croom, Esq., The Law Firm of Tomei & Associates, PC, Staten Island, Attorney for Shah, Defendants.
Opinion
CAROLYN E. DEMAREST, J.
The defendants August Peter Maggio (“AP Maggio”), Joan Maggio, Different Twist Pretzel Company Global, LLC (“Different Twist”), The Maggio Corporation, and Chapel Banks Investment, Inc. (“Chapel”), collectively the “Pretzel Defendants,” move to dismiss the complaint, pursuant to Civil Practice Laws and Rules §§ 3211 and § 3217(c). Plaintiff moves for default judgment against the Pretzel Defendants, pursuant to CPLR § 3215, and requests to amend and re-file his Note of Issue and Certification of Readiness pursuant to CPLR §§ 3403(a)(3) and 3403(b). The defendants Reshma Shah (“Shah”) and Whitehall Pretzel and Ice Cream, Inc. (“Whitehall”, collectively “Shah Defendants”) move for an order dismissing the complaint, pursuant to CPLR § 3217(c), and for dismissal pursuant to CPLR § 3211(a)(5). Plaintiff moves for summary judgment against defendant Shah, for trial preference per CPLR §§ 3403(a)(3) and 3403(b), and to vacate the order of December 18, 2011 entered in Rose v. Different Twist Pretzel, Inc., Sup Ct, Queens County, Strauss, J., index No. 22033/10 pursuant to CPLR § 2221(e)(3).
Mohamed Shah, the father of Reshma Shah, is deceased and no longer a party to this action.
BACKGROUND
The pro-se complaint alleges that in or about May 2005, Plaintiff entered into a written contract with Chapel Banks giving plaintiff, through Different Twist Pretzel Co. of N.Y. Inc., the master rights to develop and sell licenses and pretzel products for Different Twist Pretzel Stores, in New York (“Master License Agreement”). The Master License Agreement, dated May 25, 2005, which was subsequently assigned to plaintiff personally, provides that the licensee, Different Twist Pretzel Co. of N.Y. Inc., for which plaintiff signed as president, would pay Chapel license and royalty fees from the plaintiff's store's gross sales. Pursuant to this agreement, plaintiff was an independent contractor/licensee and the Master License Agreement was contingent upon the opening of a store in the Staten Island Ferry Terminal. The controlling addendum to the Master License Agreement states in Section 2.1, “Licensee will be deemed to have satisfied its store-opening obligations for the first 12 months as provided in Section 4.1(b) hereunder upon commencement of obtaining its first store in the Staten Island Ferry Terminal(s).” The Whitehall Pretzel & Ice Cream, Inc. store opened in the Staten Island Ferry Terminal in or about December 30, 2008 and is owned by defendant Shah. Plaintiff alleges that AP Maggio subsequently, through his corporation Different Twist Pretzel–Global, LLC, entered into a separate agreement with Shah on or about June 1, 2009 for the development of pretzel stores in New York State and, on or about June 1, 2010, the defendants ceased paying the plaintiff sums due from the Master License Agreement. The complaint alleges that the Shah Defendants conspired with the Pretzel Defendants to obtain the plaintiff's development contract while the plaintiff was hospitalized. The complaint alleges that the plaintiff found food stores willing to purchase frozen pretzels and customers ready to open a store in the JFK Air Train Station in Jamaica, New York, pursuant to the Master License Agreement. However, defendants refused to do business with the plaintiff due to the contract between the Pretzel and Shah defendants.
Defendants provide documents demonstrating that this is the sixth action that plaintiff commenced in which plaintiff alleges a breach of contract and includes claims arising from the same set of operative facts as alleged in the present action. The five prior actions are:
While the defendants and plaintiff submitted voluminous documents demonstrating the history of prior actions, it is noted that all of the many pleadings, decisions, and motion papers in the prior actions were not submitted to this court.
1) Rose v. Different Twist Pretzel, Inc., et al., U.S. Dist Ct, ED NY, Garaufis, J., index No. 10–CV–3783 (“Action 1”)
2) Rose v. Different Twist Pretzel, Inc. et al., Sup Ct, Queens County, Strauss, J., index No. 22033/2010 (“Action 2”)
3) Rose v. Different Twist Pretzel, Inc., et al., U.S. Dist Ct, NJ, Wigenton, J., index No. 11–CV–4635 (“Action 3”)
4) Rose v. The Maggio Corporation, et al., Sup Ct, Queens County, Strauss, J., index No.23650/2012 (“Action 4”)
5) Rose v. Maggio Corporation, et al., U.S. Dist Ct, ED NY, Garaufis, J., index No. 13–CV–2649 (“Action 5”)
Although the Shah Defendants were not parties to all of the prior actions, they were parties in Actions 1 and 2. Defendants argue that plaintiff repeatedly filed notices of voluntary discontinuance and then commenced a new action raising the same issues. Defendants argue that these voluntary discontinuances operate as an adjudication on the merits and plaintiff is barred from commencing the present action.
Plaintiff contends that although the Shah Defendants were listed in the caption, they were not served with the complaint in Action 1.
Action 1, commenced on August 10, 2010, was dismissed by order of District Court Judge Garaufis on September 7, 2010 in which it was noted the plaintiff wanted to proceed in state court and the court “construe[d] this request as a timely notice of dismissal under Federal Rule of Civil Procedure 41(a)(1)(A) such that [plaintiff] may pursue his claims in state court.”
Action 2 was commenced on or about August 27, 2010. After Justice Strauss issued a decision on May 23, 2011, dismissing the complaint as to Joan Maggio and the Shah Defendants, but giving plaintiff leave to file an amended complaint, and denying AP Maggio, Chapel and Different Twist's motion for leave to file a late answer, plaintiff filed an amended complaint. However, on December 18, 2012, Justice Strauss dismissed the amended complaint as to the Shah defendants. The plaintiff represented himself at an inquest conducted by Justice Strauss with respect to the defaulting defendants, AP Maggio, Chapel and Different Twist, and a memorandum judgment by Justice Strauss for $120,885.00 was dated December 18, 2012. However, by orders of Justice Strauss dated October 2 and 10 and November 19, 2012, and April 5 and 18, 2013, the defaults, the inquest, and memorandum judgment were all vacated. On April 18, 2013, plaintiff was directed to file a Note of Issue by September 6, 2013. On August 29, 2013, one week before the Note of Issue deadline, plaintiff voluntarily discontinued Action 2.
In Action 3, commenced on August 10, 2011, plaintiff submitted a letter dated May 14, 2012 indicating that he was withdrawing that action. Accordingly, by order dated May 24, 2012, District Court Judge Susan D. Wigenton dismissed Action 3.
In Action 5, commenced on April 25, 2013, the Pretzel Defendants moved to dismiss the federal action in the Eastern District on June 25, 2013 and plaintiff filed a letter with the court consenting to voluntary dismissal without prejudice “based on the request from his oncologist as it is a matter of life and death that the plaintiff focus on medical issues at hand, at the present time.” As it was unclear to Magistrate Judge Lois Bloom whether plaintiff was requesting dismissal pursuant to FRCP 41(a)(1)(A) or 41(a)(2), by order of July 3, 2013, Judge Bloom required that the plaintiff either file a notice of dismissal pursuant to FRCP 41(a)(1)(A) or make a motion pursuant to FRCP 41(a)(2). Judge Bloom specifically noted,
The Court must advise plaintiff that Fed.R.Civ.P. 41 protects defendants from repeated voluntary dismissals. Therefore, if plaintiff has filed and withdrawn the same claims as presented herein, even a voluntary dismissal may have consequences on future related claims.
On July 10, 2013, plaintiff filed a notice of voluntary dismissal pursuant to FRCP 41(a)(1)(A).
Plaintiff commenced Action 4 in Queens County Supreme Court on November 15, 2012 against the Pretzel Defendants. The Pretzel defendants argue that plaintiff filed multiple Orders to Show Cause seeking the recusal of Justice Strauss in that action. However, those motions were apparently denied. The Pretzel Defendants argue that the plaintiff voluntarily moved to dismiss Action 4 and it was granted on December 17, 2013. The Pretzel Defendants further argue that the December 17, 2013 order stated, “It is the order of this court that no further motions will be entertained without the prior written approval of the Administrative Judge of Queens County, Supreme Court.” On January 7, 2014, three weeks later, plaintiff commenced the present action in Kings County.
The purported December 17, 2013 order in Action 5 was not included in the papers. However, plaintiff did not contest the existence of this order.
Defendants argue that the claims in this action arise out of the same operative facts as in the prior actions. The complaint in this action alleges: breach of contract against the Pretzel Defendants relating to the Whitehall store in the Staten Island Ferry Terminal, tortious interference with contract and lost profits against Shah and Whitehall for the Whitehall store, breach of contract and lost profits against the Pretzel Defendants concerning plaintiff's alleged right to develop a frozen line of pretzels for sale in New York, breach of contract against the Pretzel Defendants concerning a store at the JFK air train station in Jamaica, New York, and a store at Dover Downs Race Track and Casino in Dover, Delaware, fraudulent inducement against the Pretzel Defendants, breach of duty against all defendants due to their knowledge of plaintiff's medical condition, breach of implied covenant of good faith and fair dealing against all defendants, fraud and violation of franchise laws against Pretzel Defendants, and against all defendants, for plaintiff's professional fees incurred. All of the claims raised in the instant case have been raised in prior actions except for the breach of duty in regards to defendants' awareness of plaintiff's medical condition, breach of implied covenant of good faith and fair dealing, and for professional fees incurred. However, those claims arise out of the same alleged contractual relationship at issue in the prior actions.
DISCUSSION
The Pretzel and Shah Defendants move to dismiss the complaint pursuant to CPLR §§ 3217(c) and 3211(a)(5). Pursuant to CPLR § 3217(c), “[u]nless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States” (emphasis added). CPLR § 3211(a)(5) provides that a dismissal is warranted when, “the cause of action may not be maintained because of ... collateral estoppel [or] res judicata.” “Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again. Additionally, under New York's transactional analysis approach to res judicata, 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. ‘Res judicata is designed to provide finality in the resolution of disputes,’ recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation' “ (In re Hunter, 4 NY3d 260, 269–270 [2005], internal citations omitted; see Matter of Kafka v. Meadowlark Gardens Owners, Inc., 34 AD3d 676 [2d Dept 2006] ; Newton Garment Carriers, Inc. v. Consolidated Carriers Corp., 250 A.D.2d 482 [1st Dept 1998] ).
Prior to commencing the present action, plaintiff filed five separate actions based on claims arising out of the same series of transactions and each one was discontinued at the request of the plaintiff. Accordingly, pursuant to CPLR § 3217(c), these discontinuances operated as adjudications on the merits. Under the doctrine of res judicata, the plaintiff is prohibited from relitigating those claims or any of the claims that should have been raised in the prior litigation (see In re Hunter, 4 NY3d at 269–270 ; Matter of Kafka, 34 AD3d at 676 ; Newton Garment, 250 A.D.2d at 482 ). Accordingly, defendants' motions to dismiss are granted and this action is dismissed with prejudice under the doctrine of res judicata (see id.; CPLR §§ 3217(c) and 3211(a)(5) ).
To the extent that plaintiff alleges that his medical condition is the basis for the multiple discontinuances, this court finds that argument unavailing. Plaintiff should have requested extensions from the judges in the prior actions due to any medical conditions that affected his ability to prosecute the action. Instead, plaintiff repeatedly filed notices of discontinuance and commenced new actions. Plaintiff was specifically warned about the consequences of voluntary dismissal in Judge Bloom's order of July 3, 2013 (see supra. ). Further, the plaintiff's filing of this new action in a new county, three weeks after the dismissal of Action 4, was a blatant attempt to circumvent Justice Strauss's order of December 17, 2013 which required prior approval by the Queens County Administrative Justice before plaintiff could take any further actions. Plaintiff commenced multiple actions against the defendants as a form of harassment and will not be permitted to repeatedly commence actions with respect to the same transactions (see Rodrigues v. Samaras, 2014 N.Y. Slip Op 03819 [2d Dept 2014], holding that, “[t]he underlying purpose of CPLR 3217(c) is to curb the use of the discontinuance device as a means of harassment and a source of unnecessary repetitive litigation”).
Plaintiff's motion for summary judgment, cross-motions for default judgment against the Pretzel Defendants, and request to amend and re-file his Notice of Issue and Certification of Readiness are moot in light of the dismissal of this action. Accordingly, plaintiff's summary judgment and cross-motion for default are denied.
Plaintiff served the Pretzel Defendants with the instant complaint on January 24, 2014. On March 19, 2014, 54 days after being served with the complaint, the Pretzel Defendants filed the summary judgment motion before this court. On April 23, 2014, plaintiff cross-moved for a default judgment against the Pretzel Defendants pursuant to CPLR § 3215. Plaintiff alleged that the Pretzel Defendants failed to answer or make a timely summary judgment motion. Pursuant to CPLR § 320(a), the defendants were required to serve an answer or file a motion within 20 days of January 24, 2014. While the Pretzel Defendants' motion was untimely pursuant to CPLR § 320(a), the delay of approximately 34 days was not excessive and the plaintiff has not demonstrated any prejudice from the delay (see Chambers v. Maury Povich Show, 285 A.D.2d 440 [2d Dept 2001] ). Accordingly, in light of this court's granting of the Pretzel Defendants' summary judgment motion, plaintiff's cross motion for default judgment is denied.
The Pretzel Defendants seek sanctions for plaintiff's frivolous repetitious litigation. There is no doubt that such sanctions are warranted, however, the court denies such relief in light of plaintiff's pro se status and his medical condition which may have affected his judgment. Any further abusive litigation in this court will not, however, be tolerated.
CONCLUSION
Accordingly, the defendants' motions for summary judgment are granted. The case is dismissed with prejudice. The plaintiff's motion for summary judgment and cross-motion for default judgment are denied.
The foregoing constitutes the decision and order of the court.