Daniel M. Johnson, Plaintiff, v. BRYAN PALBAUM (2026)

Upon the foregoing cited papers, defendant's motion to amend and for summary judgment is decided as follows:

Plaintiff commenced this action to recover money damages from defendant's alleged discrimination and retaliation against plaintiff by denying plaintiff goods and services. Defendant moves to amend its answer pursuant to CPLR 3025(b) to add affirmative defenses of res judicata and collateral estoppel. Defendant also moves pursuant to CPLR 3212 for summary judgment against plaintiff. Defendant contends that the claims plaintiff raises in his summons with endorsed complaint have already been investigated and dismissed by the New York State Division of Human Rights ("DHR"), and plaintiff should thus be precluded from relitigating the same claims. No opposition has been interposed.

Defendant provides in support of its motion, inter alia: i) its original answer dated May 9, 2025; ii) a proposed amended answer; iii) plaintiff's complaints filed with the DHR dated December 15, 2023 and January 11, 2024; iv) a copy of plaintiff's summons with endorsed complaint dated March 11, 2025 and plaintiff's affidavit in support of his complaint dated February 26, 2025; v) the DHR's Determination and Order concerning plaintiff's complaint dated July 24, 2025; vi) the affirmation of its General Liability Claims Manager, Salvador Lozano ("Lozano"); vii) the affirmation of its Assistant Manager, Casey Dahl ("Dahl"); and viii) the affirmation of its Assistant Manager, Kaleb Jones ("Jones").

On December 15, 2023, prior to commencing this lawsuit, plaintiff filed a complaint with the DHR against defendant ("first DHR complaint"), alleging that an incident occurred on December 14, 2023 in which defendant discriminated against plaintiff by denying plaintiff access to a public accommodation and by denying plaintiff a reasonable accommodation for plaintiff's disability (defendant's exhibit B). Plaintiff filed an additional complaint with the DHR on January 11, 2024 ("second DHR complaint"), alleging the identical claim contained within plaintiff's first DHR complaint as well as an additional allegation that defendant retaliated against him in an alleged incident on January 4, 2024 (defendant's exhibit C). In response to plaintiff's complaints with the DHR, defendant disputed plaintiff's allegations in a formal response (defendant's exhibit D). Plaintiff commenced the instant matter in New York County Civil Court by filing a summons with endorsed complaint on March 11, 2025. Plaintiff is seeking $50,000 in money damages and alleges defendant's "failure to provide proper service" (defendant's exhibit G). Plaintiff's Application for a Summons was accompanied by a description of plaintiff's allegations labeled as an "affidavit in support," which alleges the incident from plaintiff's first DHR complaint as well as other various incidents that plaintiff did not complain of to the DHR (defendant's exhibit H).¹ Plaintiff had previously commenced a lawsuit against Trader Joe's in New York County Civil Court on February 24, 2025 (defendant's exhibit E).² On July 24, 2025, the DHR issued a Determination and Order that there was "NO PROBABLE CAUSE to believe that the [defendant] has engaged in or is engaging in the unlawful discriminatory practice complained of" ("DHR Determination") (defendant's exhibit J). The DHR Determination further stated that plaintiff "has not put forth evidence or information that supports that he experienced an act of discrimination" and that plaintiff was "not denied services or access as he acknowledges that he was permitted to shop and to purchase from the [defendant]" (id.). The DHR Determination provided that any party to the DHR proceeding had sixty (60) days after the service of the Determination to appeal the DHR's findings through a filing with New York State Supreme Court (id.).

The Court first considers defendant's motion to amend its answer to add the affirmative defenses of res judicata and collateral estoppel. CPLR 3025(b) allows for a party to "amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." Permission to amend pleadings should be "freely given" (CPLR 3025[b]), and whether an amendment is permitted is committed to the court's discretion (see Murray v City of New York, 43 NY2d 400 [1977]). A motion to amend "shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" (id.). Leave to amend should be granted so long as there is no "substantial prejudice or surprise" (JPMorgan Chase Bank, N.A. v Low Cost Bearings NY Inc., 107 AD3d 643, 644 [1st Dept 2013] [internal citation omitted]). A proposed amendment must not be "palpably insufficient or patently devoid of merit" (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). In evaluating a proposed amendment, "[n]o evidentiary showing of merit is required under CPLR 3025(b)" (Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept 2008]). Additionally, a party may move to amend its pleading to add defenses that would otherwise be deemed waived under CPLR 3211(e) (see Giacamazzo v Moreno, 94 AD2d 369 [1st Dept 1983]).

Here, defendant submits a proposed amended answer in which it asserts the affirmative defenses of res judicata and collateral estoppel. Given the determination issued by the DHR on July 24, 2025, such an amendment is not "palpably insufficient or patently devoid of merit" (MBIA Ins. Corp. at 499). Defendant also contends that plaintiff's complaint to the DHR that resulted in a final Determination and Order encompassed the same allegations plaintiff raised in the instant matter, and that plaintiff was apprised of the DHR's Determination, which would not lead to "substantial prejudice or surprise" (JP Morgan Chase Bank, N.A. at 644).

Plaintiff does not oppose defendant's motion and thus has not overcome the presumption of validity of the proposed amendment in defendant's favor (Peach Parking Corp., v 346 W. 40th St., LLC, 42 AD3d 82, 86 [1st Dept 2007]), nor does plaintiff make a showing of prejudice (see Leslie v Hymes, 60 AD2d 564 [1st Dept 1977]). Consequently, defendant's motion to amend its answer to add the affirmative defenses of res judicata and collateral estoppel is granted, and this Court will consider such affirmative defenses pled nunc pro tunc for the purposes of defendant's instant motion for summary judgment.

Defendant contends that the doctrines of res judicata and collateral estoppel should preclude plaintiff's pending lawsuit as a result of the DHR Determination in which the DHR found no probable cause for plaintiff to sustain any discrimination or retaliation claims against defendant.

As a matter of course, the affirmative defenses of res judicata and collateral estoppel "are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies when rendered pursuant to the adjudicatory of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law" (Ryan v New York Telephone Co., 62 NY2d 494, 499 [1984] [internal citations omitted]). A quasi-judicial determination "requires a trial-type hearing with opportunity for presentation of evidence and cross-examination" (see Jason B. v Novello, 12 NY3d 107, 114 [2009]).

Here, defendant submitted the DHR Determination in support of their motion, which addresses plaintiff's second DHR complaint.³ Thus, the Determination and Order issued by the DHR only contemplated plaintiff's allegations of discrimination and retaliation for alleged incidents on December 14, 2023 and January 4, 2024. However, plaintiff's affidavit in support of his summons with endorsed complaint for the instant action alleges four incidents involving defendant on June 27, 2023, December 14, 2023, February 4, 2025, and February 18, 2025 (defendant's exhibit F). The only incident pled in plaintiff's DHR complaints and in plaintiff's summons with endorsed complaint is the December 14, 2023 incident. Therefore, the only incident that could be considered to have had a final determination on the merits for the purposes of res judicata is the December 14, 2023 incident.

This Court finds that res judicata and collateral estoppel are not applicable in the instant case as the DHR Determination cannot be considered "quasi-judicial." The record is devoid of any showing that the DHR Determination was "the product of an adversarial proceeding where evidence was received, testimony taken, and arguments and objections made resulting in a record" (see Jason B. at 113). Indeed, the DHR Determination only states that an investigation was conducted, not a quasi-judicial hearing or proceeding (defendant's exhibit J). Therefore, res judicata and collateral estoppel cannot apply in the instant case, and defendant's motion for summary judgment on the basis of res judicata and collateral estoppel is denied.

The Court now considers the remaining arguments on defendant's motion for summary judgment. Defendant contends it is entitled to summary judgment for multiple reasons, including: i) defendant is not liable for the actions of third-party security personnel; ii) defendant's employees did not have knowledge of the condition that plaintiff alleges was the reason for supposed discrimination; iii) defendant's employees were unaware of any DHR complaints plaintiff had filed that could have led to retaliatory behavior; and iv) plaintiff admits within plaintiff's pleadings that he was allowed to shop at defendant's store and thus was not denied goods and services.

It is well established that the proponent of a summary judgment motion must make a prima facie case showing of entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]). "It is not the function of a court to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012] [internal citation omitted]). The court's role is "issue-finding, rather than issue determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [internal citation and quotation marks omitted]).

Here, defendant has established a prima facie showing of entitlement of judgment as a matter of law. A store is not responsible for the actions of third-party security guards who are employed by an unrelated company if the security guards are not on the store's payroll or if the store could not directly hire or discipline those security guards (McLaughlan v BR Guest, Inc., 149 AD3d 519, 520 [1st Dept 2017]). Here, defendant has submitted proof that defendant does not have such third party security guards on payroll and that defendant does not have the authority to hire or discipline such security guards (Lozano affirmation ¶ 5). Defendant has also shown that its employees did not engage in discrimination or retaliation against plaintiff as its employees were not aware of plaintiff's alleged disability nor any complaints plaintiff had made to the DHR (Dahl affirmation; Jones affirmation; see Aponte v Town of Islip, 236 AD3d 424, 426 [1st Dept 2024]). Defendant also established that plaintiff was not denied goods or services at defendant's store as plaintiff could have returned to the store to purchase groceries if he wished (see Jones affirmation). As for any allegations plaintiff asserted in his bills of particulars but not in his summons and endorsed complaint, a bill of particulars "may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint" (Paterra v Arc Dev. LLC, 136 AD3d 474, 475 [1st Dept 2016] [internal citation and quotation marks omitted]). Therefore, this Court need not consider any additional allegations plaintiff asserts in his bill of particulars but not in his summons and complaint. participated in any specific conduct against plaintiff that gave rise to the instant action. Therefore, plaintiff's claims against Bryan Palbaum in his individual capacity cannot survive.

The burden then shifts to plaintiff to produce sufficient evidence of a triable issue of material facts. Plaintiff has not offered any opposition to this motion and thus, no material issue of fact requiring trial exists. Consequently, defendant's motion for summary judgment is granted.

Accordingly, it is hereby

ORDERED, that the branch of defendant's motion to amend its answer to add affirmative defenses of res judicata and collateral estoppel is granted and such affirmative defenses are deemed to have been pled nunc pro tunc; and it is further

ORDERED, that the portion of defendant's motion for summary judgment against plaintiff is granted and the complaint is dismissed; and it is further

ORDERED, that the Clerk is directed to enter judgment in favor of defendant as against plaintiff; and it is further

ORDERED, that defendant is directed to serve a copy of this decision and order with notice of entry upon plaintiff within twenty (20) days of the date of entry.

This constitutes the decision and order of this Court.

DATE October 20, 2026

Hon. Alice Tam Tien, JCC

FOOTNOTES

1.   Plaintiff's affidavit in support of his summons with endorsed complaint alleges the following dates of incident: June 27, 2023, December 14, 2023, February 4, 2025, and February 18, 2025. The only incident that plaintiff alleged identically in both his complaint to the DHR and within the instant action is the December 14, 2023,incident.

2.   The Court notes that plaintiff's summons with endorsed complaint dated February 24, 2025, bearing Index No. CV-003724-25NY and plaintiff's instant summons with endorsed complaint dated March 11, 2025, are identical in their causes of action and amounts of damages claimed. Additionally, plaintiff's Applications for a Summons for each matter are identical in dates of incident and the description of each incident pled. Defendant filed identical answers to each summons with endorsed complaint.

3.   Plaintiff's complaint to the DHR dated January 11, 2024, for which the DHR issued a Determination and Order, alleged two dates of incident: December 14, 2023 and January 4, 2024. The allegations in plaintiff's first complaint to the DHR dated December 15, 2023 are identical to those he included within his second complaint to the DHR.

Alice Tam Tien, J.