SAITI v. 316 EAST 68TH STREET CORP (2021)

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about February 26, 2020, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Supreme Court correctly determined that the allegations underlying plaintiff's breach of contract, promissory estoppel, and unjust enrichment claims are barred by the doctrine of res judicata, and subject to dismissal under pursuant to CPLR 3211(a)(5).  Contrary to plaintiff's contention, the requisite privity exists for purposes of res judicata because the record establishes that his union filed a grievance on his behalf challenging defendant's termination of his employment and represented him during the prior arbitration (see Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485–486, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979];  Spasiano v. Provident Mut. Life Ins. Co., 2 A.D.3d 1466, 1467, 770 N.Y.S.2d 534 [4th Dept. 2003]).  All of the allegations in the complaint were reasonably and plainly within the scope of the dispute submitted to arbitration.  The arbitration award addressed the issue of what compensation plaintiff was entitled to receive as a result of defendant terminating his employment (see Sultan v. Zhu, 180 A.D.3d 585, 586, 120 N.Y.S.3d 300 [1st Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6193489 [2020]).

Plaintiff's opposition to the motion failed to sustain his burden of showing that he did not have a full and fair opportunity to litigate the construction projects at issue during the prior arbitration proceeding.  The collective bargaining agreement between the parties permitted his union to question his wage when an obvious inequity existed by reason of plaintiff regularly having to apply specialized abilities in his work or where the work imposed additional responsibilities upon him (see Martin v. Geico Direct Ins., 31 A.D.3d 505, 506, 818 N.Y.S.2d 265 [2d Dept. 2006]).  Furthermore, plaintiff's affidavit did not address how the projects he refused to complete for the interior of defendant's building before defendant terminated his employment as described in the arbitration award do not arise out of the same transaction or occurrence as the construction projects at issue (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357–358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981];  Platon v. Linden–Marshall Contr. Inc., 176 A.D.3d 409, 410, 109 N.Y.S.3d 41 [1st Dept. 2019];  Getty Props. Corp. v. Getty Petroleum Mktg. Inc., 150 A.D.3d 541, 542, 55 N.Y.S.3d 186 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1083, 69 N.Y.S.3d 850, 92 N.E.3d 1240 [2018]).