Opinion
2012-03-13
EGBERT SQUARE REALTY, LLC, respondent, v. 112–114 CORP., et al., appellants.
Thomas Stanziale, Mineola, N.Y., for appellant 112–114 Corp. Awad Ibrahim, Staten Island, N.Y., appellant pro se.
Thomas Stanziale, Mineola, N.Y., for appellant 112–114 Corp. Awad Ibrahim, Staten Island, N.Y., appellant pro se. Decker, Decker, Dito & Internicola, LLP, Staten Island, N.Y. (Charles N. Internicola of counsel), for respondent.REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for trespass, the defendants separately appeal from an order of the Supreme Court, Richmond County (Ajello, J.H.O.), dated December 4, 2009, which granted the plaintiff's motion pursuant to CPLR 3211 to dismiss their affirmative defenses numbered 1, 2, 4, 5, and 8 through 12, and their counterclaims numbered 2 through 6.
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were to dismiss the affirmative defenses numbered 1, 2, 9, 10, 11, and 12 and the counterclaims numbered 3, 4, 5, and 6, and substituting therefor a provision denying those branches of the plaintiff's motion; as so modified, the order is affirmed, with one bill of costs payable to the defendants.
The doctrine of collateral estoppel bars relitigation of an issue “which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” ( Simpson v. Alter, 78 A.D.3d 813, 814, 911 N.Y.S.2d 405; see Storman v. Storman, 90 A.D.3d 895, 935 N.Y.S.2d 63; Leung v. Suffolk Plate Glass Co., Inc., 78 A.D.3d 663, 911 N.Y.S.2d 376). “ ‘[It] is a flexible doctrine grounded in the facts and realties of a particular litigation which should not be rigidly or mechanically applied since it is, at its core, an equitable doctrine reflecting general concepts of fairness' ” ( Simpson v. Alter, 78 A.D.3d at 814, 911 N.Y.S.2d 405, quoting Matter of Hunter, 6 A.D.3d 117, 131–132 n. 2, 775 N.Y.S.2d 42, affd. 4 N.Y.3d 260, 794 N.Y.S.2d 286, 827 N.E.2d 269; see Buechel v. Bain, 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051). A decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel ( see Jespersen v. Li Sheng Liang, 68 A.D.3d 724, 725, 890 N.Y.S.2d 103; Towne v. Asadourian, 277 A.D.2d 800, 801, 722 N.Y.S.2d 187; Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 65, 592 N.Y.S.2d 167; Begelman v. Begelman, 170 A.D.2d 562, 563, 566 N.Y.S.2d 337; Berkshire Nursing Ctr. v. Len Realty Co., 168 A.D.2d 475, 476, 562 N.Y.S.2d 716).
Here, no order or judgment was entered in the prior action between the parties. Accordingly, the Supreme Court improperly granted those branches of the plaintiff's motion which were to dismiss the defendants' affirmative defenses numbered 9, 10, 11, and 12 and the counterclaims numbered 3, 4, 5, and 6 on the basis of collateral estoppel.
In addition, the plaintiff did not timely move to have a judgment entered upon the decision in the prior action ( see CPLR 5016[c]; 22 NYCRR 202.48). Accordingly, the Supreme Court erred in granting those branches of the plaintiff's motion which were to dismiss the defendants' affirmative defenses numbered 1 and 2, which alleged that the plaintiff had abandoned the prior action.
The defendants' remaining contentions are without merit.