| Baten v Northfork Bancorporation, Inc. |
| 2011 NY Slip Op 05003 [85 AD3d 697] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Mohammed Abdul Baten, Respondent, v NorthforkBancorporation, Inc., a Division of Capital One Financial Corporation, N.A., et al., Appellants,and Riggs Construction Company, Inc., Respondent. |
—[*1] Kral Clerkin Redmond Ryan Perry & Girvan, LLP, New York, N.Y. (James V. Derenze ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants NorthforkBancorporation, Inc., a division of Capital One Financial Corporation, N.A., and Capital OneFinancial Corporation, N.A., as successor to Westbury Savings and Loan Association, appealfrom an order of the Supreme Court, Kings County (Knipel, J.), dated December 17, 2009, whichgranted the motion of the defendant Riggs Construction Company, Inc., for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it and denied their crossmotion to convert their cross claims into a third-party action.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant Riggs Construction Company, Inc., which was for summary judgment dismissing thecomplaint insofar as asserted against it is dismissed, without costs or disbursements, as theappellant is not aggrieved thereby (seeMixon v TBV, Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, without costs ordisbursements, that branch of the motion of the defendant Riggs Construction Company whichwas for summary judgment dismissing the cross claims of the defendants NorthforkBancorporation, Inc., a division of Capital One Financial Corporation, N.A., and Capital OneFinancial Corporation, N.A., as successor to Westbury Savings and Loan Association, forcontribution and common-law indemnification, is denied, and that branch of the appellants' crossmotion which was to convert their cross claims for contribution and common-lawindemnification into a third-party action is granted.
Following hearings in the plaintiff's workers' compensation matter, a Workers' CompensationLaw Judge determined that the defendant Riggs Construction Company, Inc. (hereinafter Riggs),rather than nonparty GM Construction and Renovations, was the plaintiff's employer, andawarded benefits to the plaintiff. Riggs appealed the determination, and the Workers'Compensation Board affirmed. The defendants Northfork Bancorporation, Inc., a division ofCapital One Financial Corporation, N.A., and Capital One Financial Corporation, N.A., assuccessor to [*2]Westbury Savings and Loan Association(hereinafter collectively Capital One), were not notified of the proceedings.
Upon the determination of the Workers' Compensation Board that Riggs was the plaintiff'semployer, Riggs moved for summary judgment in the instant personal injury action, dismissingthe complaint and Capital One's cross claims insofar as asserted against it. Notwithstanding thefact that Capital One was not a party to the prior proceedings, the Supreme Court gave preclusiveeffect to the Workers' Compensation Board's determination and granted Riggs's motion forsummary judgment.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceedingan issue . . . raised in a prior action or proceeding and decided against that party orthose in privity" with it (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Indetermining whether such privity between the parties exists, "courts must carefully analyzewhether the party sought to be bound and the party against whom the litigated issue was decidedhave a relationship that would justify preclusion, and whether preclusion, with its severeconsequences, would be fair under the particular circumstances" (Buechel v Bain, 97NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; see Chambers v City ofNew York, 309 AD2d 81, 86 [2003]).
Under the particular circumstances of this case, Capital One should not have been precludedfrom litigating the issue of whether Riggs was the plaintiff's employer. While Capital One is nowtaking the same position advanced by Riggs in the former proceedings, i.e., that Riggs was notthe plaintiff's employer, nothing in the relationship between Riggs and Capital One, who areadversaries in the current proceeding, supports the Supreme Court's conclusion that Capital One'sinterests here are conditioned on, or derivative of, Riggs's interests in the workers' compensationproceedings (cf. D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]).Thus, since Capital One is not in privity with Riggs, and Capital One "was not afforded anopportunity to cross-examine witnesses or present evidence at the prior hearing[s]" (Liss vTrans Auto Sys., 68 NY2d 15, 22 [1986]), the workers' compensation determination shouldnot have been given preclusive effect as to Capital One in the current action (see Matter ofJuan C. v Cortines, 89 NY2d 659, 672 [1997]; Singh v Metropolitan Constr. Corp.,244 AD2d 328 [1997]; Rifkin v Dan's Supreme Supermarket, 198 AD2d 487 [1993];Fraser v Brunswick Hosp. Med. Ctr., 150 AD2d 754 [1989]).
Although there is no longer a direct action pending against Riggs, claims for indemnificationand contribution may be maintained in a third-party action (see Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 840 [2005];Arcuri v Ramos, 7 AD3d 741,742 [2004]; Jones v New York City Hous. Auth., 293 AD2d 371 [2002]). Accordingly,Capital One's common-law indemnification and contribution cross claims should be converted tothird-party claims.
Capital One's remaining contention is without merit. Covello, J.P., Eng, Chambers andMiller, JJ., concur.