GAMMA LENDING OMEGA LLC v. KAMINSKI (2021)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered August 28, 2020, which, insofar as appealed from as limited by the briefs, denied defendants’ motion to compel production of certain documents related to a late charge assessed on the underlying loan, unanimously affirmed, with costs.  Order, same court and Justice, entered November 13, 2020, which, in effect, granted defendants’ motion for reargument and adhered to the prior determination and granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.

The court correctly decided these motions on the ground of collateral estoppel (see D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 [1990]).  Defendants’ issue, the validity of the late charge in the underlying loan documents, was squarely addressed both in the trial court in Minnesota and in a lengthy decision by the Minnesota Court of Appeals, and, as guarantors, defendants were in privity with the borrower (a party to the Minnesota action) on the underlying loan, whose obligations they guaranteed (see e.g. APF 286 Mad LLC v. Chittur & Assoc. P.C., 132 A.D.3d 610, 20 N.Y.S.3d 4 [1st Dept. 2015], lv dismissed 27 N.Y.3d 952, 29 N.Y.S.3d 913, 49 N.E.3d 1207 [2016]).

Plaintiff did not waive the defense of collateral estoppel, because the defense appeared on the face of its pleading (CPLR 3018).  Moreover, plaintiff asserted the preclusive effect of the Minnesota proceedings in its objections to defendants’ document requests.  Thus, there was no surprise or new factual issue raised by assertion of the defense, and it was not waived (Giraldo v. Washington Intl. Ins. Co., 103 A.D.3d 775, 776, 962 N.Y.S.2d 171 [2d Dept. 2013]).