| 99 Cents Concepts, Inc. v Queens Broadway, LLC |
| 2010 NY Slip Op 00824 [70 AD3d 656] |
| February 2, 2010 |
| Appellate Division, Second Department |
| 99 Cents Concepts, Inc., Appellant, v Queens Broadway,LLC, Respondent. |
—[*1] Hsu Law Associates, PLLC, New York, N.Y. (Irena Milos of counsel), forrespondent.
In an action to recover damages for breach of a lease, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (McDonald, J.), entered November 21, 2008, asgranted 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 grantingthose branches of the motion which were to dismiss the first through sixth causes of action of theamended 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.
On January 9, 2007, the defendant landlord commenced a summary proceeding in the CivilCourt to evict the plaintiff for nonpayment of rent. In its answer in the Civil Court proceeding,the plaintiff asserted a counterclaim to recover payment of excess rent, real estate taxes, andcondominium charges, alleging that it had been overcharged because, although its lease entitledit to occupy the entire basement of the premises, the defendant had leased half of the basement toanother tenant without its consent. By summons and complaint filed on March 13, 2007, whilethe Civil Court action was still pending, the plaintiff commenced this action in the SupremeCourt, alleging that the defendant had breached the lease by refusing to allow it to occupy theentire basement, and seeking damages, including reimbursement for excess payments. Shortlythereafter, on April 19, 2007, the parties entered into a stipulation settling the Civil Court actionin exchange for the plaintiff's agreement to make certain payments, and allowing the entry of amoney judgment in the defendant's favor. After setting forth the terms relating to theagreed-upon payments, the stipulation stated that "all agreements above without prejudice to [theplaintiff]'s Supreme Court case." The stipulation was so-ordered by a Civil Court Judge. Theplaintiff filed an amended complaint on September 11, 2007.
The defendant initially defaulted in answering or appearing in this action, but its default wasthereafter vacated by order dated July 18, 2008. After vacatur of its default, the defendantmoved, inter alia, in effect, pursuant to CPLR 3211 (a) to dismiss the complaint on the groundthat it was barred by the doctrines of res judicata and collateral estoppel, and failed to state acause of action. The Supreme Court granted those branches of the motion which were to dismissthe first through sixth causes of action, [*2]agreeing, in essence,that the plaintiff could not maintain these claims in view of the prior Civil Court proceeding. Thecourt also granted the branch of the motion which was to dismiss the eighth cause of action onthe ground that it failed to state a cause of action to recover punitive damages. We modify toreinstate the first through sixth causes of action.
Under the doctrine of res judicata, a valid final judgment bars future actions between thesame parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93NY2d 343, 347 [1999]; Matter of Reilly v Reid, 45 NY2d 24, 27 [1978]). As a generalrule, "once a claim is brought to a final conclusion, all other claims arising out of the sametransaction or series of transactions are barred, even if based upon different theories or seeking adifferent remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see Parkerv Blauvelt Volunteer Fire Co., 93 NY2d at 347). Although the first through sixth causes ofaction asserted by the plaintiff in this action arise out of the same transaction as its counterclaimin the Civil Court proceeding, the so-ordered stipulation settling the Civil Court proceedingexpressly recited that it was without prejudice to the Supreme Court action, and did not dismissthe plaintiff's counterclaim. Under these circumstances, the so-ordered stipulation was not a finaljudgment on the merits of the plaintiff's counterclaim which would be entitled to res judicataeffect in this action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349; Cityof New York v Caristo Constr. Corp., 62 NY2d 819, 821 [1984]; Miller Mfg. Co. vZeiler, 45 NY2d 956, 958 [1978]; Matter of Coleman v Coleman, 1 AD3d 833, 834 [2003];Brandenberg v Primus Assoc., 304 AD2d 694, 695 [2003]; 1829 Caton Realty vCaton BMT Assoc., 225 AD2d 599 [1996]; A. Colish, Inc. v Abramson, 178 AD2d252 [1991]). Furthermore, the doctrine of collateral estoppel is not applicable here because theissue of whether the plaintiff was entitled to, and deprived of, full possession of the basement ofthe premises never was actually litigated and decided in the Civil Court proceeding, which wassettled without prejudice to this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449,456-457 [1985]; Brandenberg v Primus Assoc., 304 AD2d at 695; Singleton Mgt. vCompere, 243 AD2d 213, 217 [1998]; 1829 Caton Realty v Caton BMT Assoc., 225AD2d at 599). Accordingly, the Supreme Court should not have granted those branches of thedefendant'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 whichwas to dismiss the plaintiff's eighth cause of action on the ground that it fails to state a cause ofaction. New York does not recognize an independent cause of action for punitive damages (see Tartaro v Allstate Indem. Co., 56AD3d 758 [2008]; Aronis v TLCVision Ctrs., Inc., 49 AD3d 576, 577 [2008]), and the factual allegations set forth in thecomplaint do not evidence that the defendant engaged in conduct which rises to the high level ofmoral culpability necessary to support an award of punitive damages (see Walker vSheldon, 10 NY2d 401 [1961]; NPR, LLC v Met Fin Mgt., Inc., 63 AD3d 1128 [2009]; Aronisv TLC Vision Ctrs., Inc., 49 AD3d at 577).
To the extent that the plaintiff now contends that the court should have stricken thedefendant'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 anyaffirmative relief pursuant to CPLR 2215 (see Flores v Flores, 22 AD3d 372, 373 [2005]; Lebovits vPSFB Assoc., 168 AD2d 785 [1990]). Under these circumstances, the contention is notproperly before us (see Free in ChristPentecostal Church v Julian, 64 AD3d 1153, 1154 [2009]; New York State Div. of Human Rights vOceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2007]). Fisher, J.P., Miller, Eng andHall, JJ., concur. [Prior Case History: 2008 NY Slip Op 33063(U).]