99 v. LLC (2010)

Submitted-December 15, 2009

DECISION & ORDER

In an action to recover damages for breach of a lease, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (McDonald, J.), entered November 21, 2008, as granted those branches of the defendant's motion which were, in effect, pursuant to CPLR 3211(a) to dismiss the first through sixth and eighth causes of action of the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion which were to dismiss the first through sixth causes of action of the amended complaint, and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

The defendant initially defaulted in answering or appearing in this action, but its default was thereafter vacated by order dated July 18, 2008.   After vacatur of its default, the defendant moved, inter alia, in effect, pursuant to CPLR 3211(a) to dismiss the complaint on the ground that it was barred by the doctrines of res judicata and collateral estoppel, and failed to state a cause of action.   The Supreme Court granted those branches of the motion which were to dismiss the first through sixth causes of action, agreeing, in essence, that the plaintiff could not maintain these claims in view of the prior Civil Court proceeding.   The court also granted the branch of the motion which was to dismiss the eighth cause of action on the ground that it failed to state a cause of action to recover punitive damages.   We modify to reinstate the first through sixth causes of action.

Under the doctrine of res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347;  Matter of Reilly v. Reid, 45 N.Y.2d 24, 27).   As a general rule, “once 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 seeking a different remedy” (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357;  see Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d at 347).   Although the first through sixth causes of action asserted by the plaintiff in this action arise out of the same transaction as its counterclaim in the Civil Court proceeding, the so-ordered stipulation settling the Civil Court proceeding expressly recited that it was without prejudice to the Supreme Court action, and did not dismiss the plaintiff's counterclaim.   Under these circumstances, the so-ordered stipulation was not a final judgment on the merits of the plaintiff's counterclaim which would be entitled to res judicata effect in this action (see Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d at 349;  City of New York v. Caristo Constr.   Corp., 62 N.Y.2d 819, 821;  Miller Mfg. Co. v. Zeiler, 45 N.Y.2d 956, 958;  Matter of Coleman v. Coleman, 1 AD3d 833, 834;  Brandenberg v. Primus Assoc., 304 A.D.2d 694, 695;  1829 Caton Realty v. Caton BMT Assoc., 225 A.D.2d 599;  A. Colish, Inc. v. Abramson, 178 A.D.2d 252).   Furthermore, the doctrine of collateral estoppel is not applicable here because the issue of whether the plaintiff was entitled to, and deprived of, full possession of the basement of the premises never was actually litigated and decided in the Civil Court proceeding, which was settled without prejudice to this action (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456-457;  Brandenberg v. Primus Assoc., 304 A.D.2d at 695;  Singleton Mgt. v. Compere, 243 A.D.2d 213, 217;  1829 Caton Realty v. Caton BMT Assoc., 225 A.D.2d at 599).   Accordingly, the Supreme Court should not have granted those branches of the defendant's motion which were to dismiss the first through sixth causes of action.

However, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the plaintiff's eighth cause of action on the ground that it fails to state a cause of action.   New York does not recognize an independent cause of action for punitive damages (see Tartaro v. Allstate Indem.   Co., 56 AD3d 758;  Aronis v. TLC Vision Ctrs., Inc., 49 AD3d 576, 577), and the factual allegations set forth in the complaint do not evidence that the defendant engaged in conduct which rises to the high level of moral culpability necessary to support an award of punitive damages (see Walker v. Sheldon, 10 N.Y.2d 401;  NPR, LLC v. Met Fin Mgt., Inc., 63 AD3d 1128;  Aronis v. TLC Vision Ctrs., Inc., 49 AD3d at 577).

To the extent that the plaintiff now contends that the court should have stricken the defendant's answer because it did not post a sufficient undertaking to comply with the July 18, 2008, order vacating its default, we note that the plaintiff failed to cross-move for any affirmative relief pursuant to CPLR 2215 (see Flores v. Flores, 22 AD3d 372, 373;  Lebovits v. PSFB Assoc., 168 A.D.2d 785).   Under these circumstances, the contention is not properly before us (see Free in Christ Pentecostal Church v Julian, 64 AD3d 1153, 1154;  New York State Div. of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609).

FISHER, J.P., MILLER, ENG and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court