| Matter of ADC Contr. & Constr., Inc. v Town ofSouthampton |
| 2008 NY Slip Op 03638 [50 AD3d 1025] |
| April 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of ADC Contracting & Construction, Inc.,Respondent, v Town of Southampton et al., Appellants, et al.,Respondent. |
—[*1] Kushnick & Associates, P.C., Melville, N.Y. (Lawrence A. Kushnick of counsel), forpetitioner-respondent.
In a proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compelthe Town of Southampton to release money it held in trust pursuant to Labor Law § 220-b,the Town of Southampton, Patrick Heaney, Nancy Graboski, Linda Kabot, Steven T. Kenny,Dennis A. Suskind, and Charlene G. Kagel appeal, as limited by their brief, from (1) so much ofa judgment of the Supreme Court, Suffolk County (Emerson, J.), dated April 7, 2006, as grantedthe petition to the extent of directing the Town of Southampton to release to the petitioner thesum of $149,541.97 plus interest, and (2) so much of an order of the same court dated June 22,2007, as denied that branch of their motion which was to vacate the judgment.
Ordered that the judgment is reversed insofar as appealed from, on the law, the petition isdenied in its entirety, and the proceeding is dismissed; and it is further,
Ordered that the appeal from the order dated June 22, 2007 is dismissed as academic in lightof our determination on the appeal from the judgment; and it is further,
Ordered that one bill of costs is awarded to the appellants.
In January 2000 the petitioner was awarded a contract to construct an animal shelter in the[*2]Town of Southampton. During the course of the project, awage dispute arose, as a consequence of which the New York State Department of Labor(hereinafter the Department of Labor) directed the Town to hold certain money in trust pursuantto Labor Law § 220-b for payment of employee wages. The wage dispute was thereafterresolved, and in April 2004 the Department of Labor authorized the Town to release the sum of$149,541.97 from the funds which had been withheld. However, the Town continued to withholdthis sum because a breach of contract action arising from the petitioner's performance of thesubject construction contract was pending. The petitioner thereafter commenced this proceedingpursuant to CPLR article 78 in the nature of mandamus seeking, inter alia, to compel the Town torelease the money which it held in trust. In their answer, the Town, its Council members,Supervisor, and Comptroller (hereinafter the appellants) asserted, as an objection in point of law,that the petition was barred by res judicata. After the breach of contract action terminated in theTown's favor, the Supreme Court granted the petition in this proceeding to the extent of directingthe appellants to pay the petitioner the sum of $149,541.97 with interest. We reverse thejudgment insofar as appealed from.
"Under the doctrine of res judicata, a disposition on the merits bars litigation between thesame parties, or those in privity with them, of a cause of action arising out of the sametransaction or series of transactions as a cause of action that either was raised or could have beenraised in the prior proceeding" (Abraham v Hermitage Ins. Co., 47 AD3d 855, 855 [2008]; see Matter of Hunter, 4 NY3d 260,269 [2005]; Barbieri v Bridge Funding,5 AD3d 414, 415 [2004]; Winkler v Weiss, 294 AD2d 428, 429 [2002]). Thefact that causes of action may be stated separately, invoke different legal theories, or seekdifferent relief will not permit relitigation of claims (see Matter of Hodes v Axelrod, 70NY2d 364, 372 [1987]; Matter of Reilly v Reid, 45 NY2d 24 [1978]; Abraham v Hermitage Ins. Co., 47AD3d 855 [2008]).
In the proceeding that is the subject of this appeal, the petitioner seeks to compel the Town torelease the sum of $149,541.97, which represents money due under the same constructioncontract which formed the basis of the petitioner's breach of contract action against the Town,and the Town's breach of contract counterclaim against the petitioner. Moreover, the recorddemonstrates that the petitioner's entitlement to this sum was actually litigated at the trial of thebreach of contract action, which was disposed of on the merits. Although the petitionercharacterizes this proceeding as one to compel the release of trust funds in accordance with adirective of the Department of Labor, the doctrine of res judicata bars it from relitigating itsentitlement to this money on a new theory (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008];Blandford Land Clearing Corp. v City of New York, 275 AD2d 435 [2000]; CRKContr. of Suffolk v Brown & Assoc., 260 AD2d 530 [1999]). Accordingly, the SupremeCourt should have sustained the appellants' objection in point of law alleging that the proceedingwas barred by res judicata, and dismissed the petition in its entirety on that ground.
In light of our determination, we need not reach the appellants' remaining contentions. Florio,J.P., Angiolillo, Eng and Chambers, JJ., concur.