Opinion
14613-14613A Index No. 160305/18 Case Nos. 2020-02527, 2020-04390
11-16-2021
TOWER NATIONAL INSURANCE COMPANY, as subrogee of OneWorld Wireless Inc., also known as Verizon, Subrogor, Plaintiff–Respondent–Appellant, v. Joseph A. LUGO, et al., Defendants–Appellants–Respondents, Keith Kancar, et al., Defendants.
Kelly, Rode & Kelly, LLP, Mineola (Eric P. Tosca of counsel), for appellants-respondents. Marschhausen & Fitzpatrick, P.C., Hicksville (Kevin P. Fitzpatrick of counsel), for respondent-appellant.
Kelly, Rode & Kelly, LLP, Mineola (Eric P. Tosca of counsel), for appellants-respondents.
Marschhausen & Fitzpatrick, P.C., Hicksville (Kevin P. Fitzpatrick of counsel), for respondent-appellant.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about October 6, 2020, which, insofar as appealed from, granted the motion of defendants Joseph A. Lugo and Michael Larson (defendants) for leave to amend their answer to assert affirmative defenses and denied their motion for renewal of their summary judgment motion, unanimously modified, on the law, to grant the motion for renewal, and, upon renewal, to grant the motion for summary judgment dismissing the complaint as against them, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 22, 2020, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint as against them, unanimously dismissed, without costs, as academic.
The motion court providently exercised its discretion in granting defendants leave to amend their answer to assert res judicata and collateral estoppel as affirmative defenses, based on the preclusive effect of an order entered in a prior action dismissing the negligence claim brought against defendant Lugo by plaintiff's subrogor, OneWorld Wireless, Inc (the OneWorld action) (see CPLR 3025[b] ; Lopez v. City of New York, 80 A.D.3d 432, 433, 914 N.Y.S.2d 128 [1st Dept. 2011] ; Alcala v. Soundview Health Ctr., 77 A.D.3d 591, 591, 909 N.Y.S.2d 359 [1st Dept. 2010] ). As the motion court held, those defenses have clear merit. The issue of defendants’ liability in negligence, as owners of the apartment above OneWorld's premises, for water damage to OneWorld's downstairs unit, is the same issue presented in this case (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985] ). Factoring in the privity between plaintiff and OneWorld, on the one hand, and Lugo and co-owner Larson on the other, the parties are likewise identical (see Nationwide Mut. Ins. Co. v. U.S. Underwriters Ins. Co., 151 A.D.3d 504, 505, 59 N.Y.S.3d 1 [1st Dept. 2017] ; Marinelli Assoc. v. Helmsley–Noyes Co., 265 A.D.2d 1, 7, 705 N.Y.S.2d 571 [1st Dept. 2000] ).
However, the motion court improvidently exercised its discretion to deny defendants’ motion for renewal of their prior motion for summary judgment, based on the new fact of the amendment. We accordingly exercise our own discretion to grant renewal (see Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 1031, 1032, 484 N.Y.S.2d 798, 473 N.E.2d 1172 [1984] ; Mann v. Cooper Tire Co., 33 A.D.3d 24, 28–29, 816 N.Y.S.2d 45 [1st Dept. 2006], lv denied 7 N.Y.3d 718, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ), and, upon renewal, we grant defendants’ motion for summary judgment based on the preclusive effect of the order in the OneWorld action.
We have considered plaintiff's contentions on its cross appeal and find them unavailing.