| Gadani v DeBrino Caulking Assoc., Inc. |
| 2011 NY Slip Op 05842 [86 AD3d 689] |
| July 7, 2011 |
| Appellate Division, Third Department |
| John Gadani et al., Plaintiffs, v DeBrino CaulkingAssociates, Inc., Defendant and Third-Party Plaintiff. Dormitory Authority of State of New Yorket al., Third-Party Defendants and Fourth-Party Plaintiffs-Appellants-Respondents. MarinelloConstruction Company, Fourth-PartyDefendant-Respondent-Appellant. |
—[*1] Bailey, Kelleher & Johnson, P.C., Albany (Thomas J. Johnson of counsel), for fourth-partydefendant-respondent-appellant.
Mercure, J.P. Cross appeals from an order of the Supreme Court (McDonough, J.), enteredMay 18, 2010 in Albany County, which partially granted fourth-party defendant's motion forsummary judgment dismissing the fourth-party complaint.
The extensive procedural history of this action is chronicled in three prior decisions of thisCourt (Gadani v Dormitory Auth. ofState of N.Y., 64 AD3d 1098 [2009]; Gadani v Dormitory Auth. of State of N.Y., 50 AD3d 1303 [2008];Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218 [2007]). The underlying personal injury action involved a slip andfall on snow at a construction site during the renovation of Court of Appeals Hall in the City ofAlbany. As relevant here, plaintiff John Gadani and his wife, derivatively, commenced thisaction against masonry prime contractor DeBrino Caulking Associates, Inc. (hereinafterdefendant), as well as landowner Dormitory Authority of the State of New York and projectmanager BBL Construction Services, LLC (hereinafter collectively referred to as fourth-partyplaintiffs). Fourth-party plaintiffs commenced an action against plaintiff's employer,subcontractor Marinello Construction Company (hereinafter fourth-party defendant).
In 2006, fourth-party plaintiffs were granted summary judgment dismissing all claims andcross claims against them, prompting the first appeal, which was taken only by defendant (43AD3d 1218). We concluded that questions of fact existed regarding whether fourth-partyplaintiffs could have been found liable to plaintiffs and, thus, liable to defendant for contributionor indemnification (id. at 1220-1221). We therefore reinstated defendant's cross claimsagainst fourth-party plaintiffs (id. at 1221-1222).[FN1] In the interim, Supreme Court (Teresi, J.) held a trial solely against defendant, resulting in a juryverdict in plaintiffs' favor. Upon defendant's appeal from that verdict, this Court reversed andordered the second trial to permit the jury to consider and apportion fault among plaintiff,defendant, and third-party plaintiffs (50 AD3d 1303). Although plaintiffs had no independentright to recover against fourth-party plaintiffs due to their failure to appeal the dismissal of thecomplaint against those parties, we concluded that "[d]efendant's right to seek contribution from[fourth-party plaintiffs] in a separate trial [would] not sufficiently protect [its] rights, as theverdict against defendant may well have been impacted by the fact that it was the sole defendantplaced before the jury" (id. at 1304).
At the conclusion of the second trial, the jury found that fourth-party plaintiffs were notnegligent and defendant was 100% at fault, and awarded plaintiffs $160,000 in damages.Evidently confused by the verdict sheet, the jury also found that fourth-party defendant was notnegligent. On defendant's third appeal, this Court again reversed and directed a new trial,concluding that Supreme Court (McDonough, J.) erred in refusing to instruct the jury onfourth-party plaintiffs' duty under Labor Law § 200 to plaintiff (64 AD3d 1098). Wetherefore remitted for a third trial "on the issue of the responsibility, if any, of [fourth-partyplaintiffs] to contribute and indemnify [defendant] in connection with the verdict against it"(id. at 1103). Prior to commencement of the third trial—which has been stayedpending resolution of [*2]this appeal—fourth-partydefendant moved for summary judgment based upon law of the case. Supreme Court partiallygranted the motion, dismissing fourth-party plaintiffs' negligence claim upon its determinationthat this Court's most recent decision did not vacate the prior judgment in favor of fourth-partydefendant. The court denied the motion insofar as it sought dismissal of the remaining cause ofaction for breach of contract. The parties cross-appeal, and we now reverse the dismissal offourth-party plaintiffs' negligence claim.
Initially, we note that the "law of the case" doctrine is addressed to "the potentially preclusiveeffect of judicial determinations made in the course of a single litigation before finaljudgment" (People v Evans, 94 NY2d 499, 502 [2000]). It is "a concept regulatingpre-judgment rulings made by courts of coordinate jurisdiction in a single litigation" (id.at 503). Here, inasmuch as fourth-party defendant seeks to enforce a jury verdict for plaintiffs inthe underlying action that also purportedly resolved all claims against it, we agree withfourth-party plaintiffs that the issue herein is more aptly characterized as whether collateralestoppel applies, as opposed to law of the case.[FN2]
The equitable doctrine of collateral estoppel "precludes a party from relitigating in asubsequent action or proceeding an issue clearly raised in a prior action or proceeding anddecided against that party or those in privity" (Ryan v New York Tel. Co., 62 NY2d 494,500 [1984]). The determination of an issue of law or fact will not be given preclusive effectunless "the issue [was] material to the first action or proceeding and essential to the decisionrendered therein" (id.). The party asserting collateral estoppel has the burden ofestablishing "identity of the issue, while the opponent must demonstrate the absence of a full andfair opportunity to litigate" (Jeffreys vGriffin, 1 NY3d 34, 39 [2003]). In considering whether the opponent of collateralestoppel had a full and fair opportunity to litigate an issue, we must consider "the realities of the[prior] litigation, including the context and other circumstances which . . . may havehad the practical effect of discouraging or deterring a party from fully litigating the determinationwhich is now asserted against" it (Ryan v New York Tel. Co., 62 NY2d at 501 [internalquotation marks omitted]).
Here, the verdict sheet instructed the jury to answer question nine—which askedwhether fourth-party defendant was negligent—only if it found that fourth-partyplaintiffs were negligent and that their negligence was a substantial factor in causing theaccident. Fourth-party defendant acknowledges in its brief before us that the parties would haveabandoned the fourth-party action if there were no damages to be paid by fourth-party plaintiffsand, furthermore, concedes that "the jury was not supposed to consider the issue if it found thatneither of the fourth-party plaintiffs were liable." Nevertheless, although the jury found thatfourth-party plaintiffs were not negligent, it then went on to find that fourth-party defendant wasnot negligent, as well.
Under these circumstances, the jury's finding with respect to fourth-party defendant was asuperfluous act that had no legal effect (see Files v Ken Goewey Dodge, Inc., 33 AD3d 1109, [*3]1111 [2006], lv denied 8 NY3d 803 [2007]; Pavlou v City of New York, 21 AD3d74, 76 [2005], affd 8 NY3d 961 [2007]; Leal v Simon, 147 AD2d 198, 206[1989]). That is, the issue of fourth-party defendant's negligence was not "essential to thedecision rendered" at the second trial and, thus, the jury's determination in that regard cannot begiven preclusive effect (Ryan v New York Tel. Co., 62 NY2d at 500; see Sneddon v Koeppel Nissan, Inc., 46AD3d 869, 870-871 [2007]). Considering "the realities of the litigation" in this case(Jeffreys v Griffin, 1 NY3d at 41 [internal quotation marks and citation omitted]), wecannot agree with Supreme Court that fourth-party plaintiffs were required to challenge thefinding in favor of fourth-party defendant during the most recent prior appeal; the verdict in theirfavor rendered the fourth-party action moot (see Ayala v Lockheed Martin Corp., 22 AD3d 394 [2005]). Havingobtained full relief, fourth-party plaintiffs were not aggrieved and had neither grounds to appealnor an incentive to challenge the verdict (see CPLR 5511; T.D. v New York StateOff. of Mental Health, 91 NY2d 860, 862 [1997]; see generally Roddy v Nederlander Producing Co. of Am., Inc., 15NY3d 944, 946 [2010]). Finally, fourth-party defendant has made no showing that judgmentwas entered on the verdict in its favor, and it is settled that " '[n]either the verdict of a jury nor thefindings of a court . . . upon the precise point involved . . . constitute abar, unless followed by a judgment based thereon, or into which the verdict or findings entered' "(Peterson v Forkey, 50 AD2d 774, 774-775 [1975], quoting Rudd v Cornell, 171NY 114, 128-129 [1902]; accord Churchv New York State Thruway Auth., 16 AD3d 808, 810 [2005]; see Towne vAsadourian, 277 AD2d 800, 801 [2000]).
In short, the error that required reversal and remittal for a third trial—the erroneousjury instruction that prevented the jury from properly ascertaining fourth-party plaintiffs' liability(64 AD3d at 1102-1103)—also would have undermined the jury's evaluation offourth-party defendant's negligence, a question that should not have been reached by the jury inany event. Accordingly, fourth-party plaintiffs' negligence claim should not have been dismissed(see Golden v Transport Taxi & Limousine Serv., 92 AD2d 882 [1983]). Fourth-partydefendant's arguments advanced on its cross appeal have been considered and found to be lackingin merit.
Peters, Kavanagh and Stein, JJ., concur; Malone, J., not taking part. Ordered that the order ismodified, on the law, with costs to fourth-party plaintiffs, by reversing so much thereof aspartially granted fourth-party defendant's motion for summary judgment dismissing thefourth-party complaint; motion denied in its entirety; and, as so modified, affirmed.
Footnote 1: Because plaintiffs hadnot pursued an appeal from the partial dismissal of the complaint, their claims were notreinstated, defendant's cross claims became a third-party action, and fourth-party plaintiffs' actionagainst the employer became a fourth-party action (see 64 AD3d at 1100).
Footnote 2: This Court made no reference tothe fourth-party action or fourth-party defendant in our most recent decision (64 AD3d at1098-1103), and nothing in our decision therein constitutes the law of the case with respect to theclaims now raised before us (see generally Raquet v Braun, 90 NY2d 177, 182 [1997]).