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Cnty. Wide Flooring, Corp. v. Town of Huntington

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jun 5, 2019
173 A.D.3d 678 (N.Y. App. Div. 2019)

Summary

stating that "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding"

Summary of this case from Skanska USA Bldg., Inc. v. Atl. Yards B2 Owner, LLC

Opinion

2017–10722 Index No. 607856/16

06-05-2019

COUNTY WIDE FLOORING, CORP., Respondent, v. TOWN OF HUNTINGTON, Defendant, Wenger Construction Co., Inc., Appellant.

Joseph J. Cooke, PLLC, Woodbury, NY, for appellant. Killoran Law, P.C., Westhampton Beach, N.Y. (Christian D. Killoran of counsel), for respondent.


Joseph J. Cooke, PLLC, Woodbury, NY, for appellant.

Killoran Law, P.C., Westhampton Beach, N.Y. (Christian D. Killoran of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Wenger Construction Co., Inc., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it is granted.

The defendant Town of Huntington entered into a contract with the defendant Wenger Construction Co., Inc. (hereinafter Wenger), for the construction of a new ice rink and the renovation of an existing ice rink. Wenger then entered into a subcontract with the plaintiff wherein the plaintiff agreed to provide certain materials and to install flooring for the project. After the new ice rink was built, disputes arose between Wenger and the Town regarding the renovations to the existing ice rink, and on May 2, 2012, the Town terminated its contract with Wenger.

A few months earlier, on December 30, 2011, the plaintiff had filed and served a notice of mechanic's lien against the project, alleging that the plaintiff was owed monies for work performed and materials furnished (hereinafter the 2011 mechanic's lien). On March 7, 2014, the plaintiff commenced an action alleging, inter alia, that the Town and Wenger were obligated to pay the plaintiff the sum of $147,930.87 (hereinafter the 2014 action). In an attorney's affirmation filed with the complaint in that action, the plaintiff's attorney stated that the plaintiff was "asserting claims of breach of contract and unjust enrichment." Wenger moved to dismiss the complaint insofar as asserted against it. The Supreme Court granted the motion, determining that the action was time-barred by a contractual limitations clause in the subcontract as well as the statute of limitations for foreclosing a mechanic's lien.

On November 18, 2015, the plaintiff filed and served a new notice of mechanic's lien against the project (hereinafter the 2015 mechanic's lien). The notice contained the same allegations as the 2011 mechanic's lien. On May 17, 2016, the plaintiff commenced this action to foreclose the 2015 mechanic's lien. The complaint alleged that the plaintiff completed all of its contractual obligations and was entitled to payment in accordance with the terms of the subcontract. Wenger moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, arguing, inter alia, that res judicata barred the action and the 2015 mechanic's lien was not timely filed. The Supreme Court denied the motion, concluding that the action was not barred by res judicata because it was based on the 2015 mechanic's lien, not the 2011 mechanic's lien, and that the 2015 mechanic's lien was not untimely filed. Wenger appeals.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata (see Williams v. City of Yonkers, 160 A.D.3d 1017, 1018, 76 N.Y.S.3d 92 ; Rudovic v. Rudovic, 131 A.D.3d 1225, 1227, 16 N.Y.S.3d 856 ). "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action" ( Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 ). " ‘[O]nce 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’ " ( id. at 347, 690 N.Y.S.2d 478, 712 N.E.2d 647, quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ). Accordingly, "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ( Sciangula v. Montegut, 165 A.D.3d 1188, 1190, 87 N.Y.S.3d 47 [internal quotation marks omitted]; see Matter of Hunter, 4 N.Y.3d at 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ; Chapman Steamer Collective, LLC v. KeyBank N.A., 163 A.D.3d 760, 761, 81 N.Y.S.3d 501 ).

While a subcontractor may have the right to file a second mechanic's lien within the statutory time period, at least to cure an irregularity in a lien first filed, or to reassert a lien when the prior one has been lost by delay in its enforcement (see Munoz Trucking Corp. v. Darcon Constr., Inc., 153 A.D.3d 838, 839, 61 N.Y.S.3d 238, citing Berger Mfg. Co. v. City of New York, 206 N.Y. 24, 33, 99 N.E. 153 ; see also EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 394, 399 [2d Cir.] ), a second mechanic's lien is not immune from the doctrine of res judicata. Although the plaintiff framed its causes of action in the 2014 action as breach of contract and unjust enrichment causes of action, and its cause of action in this action as one to foreclose a mechanic's lien, these are merely different theories for the plaintiff's cause of action to recover monies allegedly owed to it under the subcontract. As such, the plaintiff's cause of action against Wenger in this action is barred by the doctrine of res judicata (see QFI, Inc. v. Shirley, 60 A.D.3d 656, 656–657, 874 N.Y.S.2d 238 ; CRK Contr. of Suffolk v. Brown & Assoc., 260 A.D.2d 530, 530, 688 N.Y.S.2d 249 ). Contrary to the plaintiff's contention, the order granting Wenger's motion to dismiss the complaint in the 2014 action insofar as asserted against it was a determination on the merits for res judicata purposes (see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194, 445 N.Y.S.2d 68, 429 N.E.2d 746 ; Williams v. City of Yonkers, 160 A.D.3d at 1018, 76 N.Y.S.3d 92 ; Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 144 A.D.3d 1134, 1135, 42 N.Y.S.3d 324 ).

In addition, Wenger was entitled to dismissal of the complaint in this action insofar as asserted against it because the 2015 mechanic's lien was untimely filed (see Lien Law § 12 ; Matter of Ferran Concrete Co. v. Avon Elec. Supplies Corp., 128 A.D.2d 527, 528, 512 N.Y.S.2d 459 ).

Accordingly, the Supreme Court should have granted Wenger's motion to dismiss the complaint insofar as asserted against it.

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.


Summaries of

Cnty. Wide Flooring, Corp. v. Town of Huntington

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jun 5, 2019
173 A.D.3d 678 (N.Y. App. Div. 2019)

stating that "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding"

Summary of this case from Skanska USA Bldg., Inc. v. Atl. Yards B2 Owner, LLC
Case details for

Cnty. Wide Flooring, Corp. v. Town of Huntington

Case Details

Full title:County Wide Flooring, Corp., respondent, v. Town of Huntington, defendant…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jun 5, 2019

Citations

173 A.D.3d 678 (N.Y. App. Div. 2019)
102 N.Y.S.3d 252
2019 N.Y. Slip Op. 4354

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