| M.V.B. Collision, Inc. v Rovt |
| 2012 NY Slip Op 08496 [101 AD3d 830] |
| December 12, 2012 |
| Appellate Division, Second Department |
| M.V.B. Collision, Inc., Doing Business as Mid Island Collision,Respondent, v Olga Rovt, Appellant. |
—[*1] Steven F. Goldstein, LLP, Carle Place, N.Y. (Gina M. Arnedos of counsel), forrespondent.
In an action to recover damages for breach of contract and on an account stated, thedefendant appeals, as limited by her brief, from so much of an order of the Supreme Court,Nassau County (Adams, J.), entered January 14, 2011, as denied her cross motion, inter alia, forsummary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's cross motion which was for summary judgment dismissing the cause ofaction to recover damages for breach of contract, and substituting therefor a provision grantingthat branch of the cross motion; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
In May 2007, the defendant's vehicle was brought to an automotive repair shop owned by theplaintiff, M.V.B. Collision, Inc., doing business as Mid Island Collision (hereinafter Mid Island).After the defendant's insurance carrier offered to pay an amount less than that contained in MidIsland's demand for payment, Mid Island served a notice of lien and sale upon the defendant. Thedefendant and the insurer of her vehicle then commenced a special proceeding against Mid Islandpursuant to Lien Law § 201-a to challenge the validity of the lien. In January 2010, theparties to the special proceeding entered into a stipulation to discontinue the proceeding "withoutprejudice." Thereafter, in April 2010, Mid Island commenced this action, asserting causes ofaction to recover damages for breach of contract and on an account stated. The plaintiff movedfor summary judgment on the complaint, and the defendant cross-moved, inter alia, for summaryjudgment dismissing the complaint, contending, among other things, that this action was barredby the doctrines of collateral estoppel and the election of remedies. The Supreme Court, interalia, denied the cross motion.
"Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in a subsequentaction or proceeding an issue clearly raised in a prior action or proceeding and decided againstthat party [or those in privity], whether or not the tribunals or causes of action are the same' "(Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], quoting Ryan vNew York Tel. Co., 62 NY2d 494, 500 [1984]). "This doctrine applies only 'if the issue inthe second action is identical to an issue which was raised, necessarily decided and material inthe first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlieraction' " (City of New York v WelsbachElec. Corp., 9 NY3d 124, 128 [2007], quoting Parker v Blauvelt Volunteer FireCo., 93 NY2d at 349). "[C]ollateral estoppel effect will only be given to matters actuallylitigated and determined in a prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449,456 [1985] [internal quotation marks omitted]). Here, the issues of the existence of a bindingcontract and an account stated were never determined in the prior special proceeding to challengethe validity of Mid Island's lien. In addition, Mid Island's stipulation to discontinue theproceeding cannot be construed as a determination following a full and fair opportunity to litigatethe issues that would be necessary to collaterally estop Mid Island from establishing that thedefendant breached the parties' contract and was liable to Mid Island on an account stated (see Maybaum v Maybaum, 89 AD3d692, 695 [2011]; North Shore-LongIs. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 441 [2006];Singleton Mgt. v Compere, 243 AD2d 213, 217-218 [1998]). Accordingly, this action isnot barred by the doctrine of collateral estoppel.
Furthermore, since the lien and the plenary action "are not inconsistent, maintenance of thelatter is not precluded under the doctrine of election of remedies" (Corrao v Corrao, 133AD2d 245, 248 [1987]; cf. Simon v Boyer, 51 AD2d 879 [1976], affd 41 NY2d822 [1977]).
However, the Supreme Court should have granted that branch of the defendant's cross motionwhich was for summary judgment dismissing the cause of action to recover damages for breachof contract on the ground that there was no binding contract. In support of her cross motion, thedefendant demonstrated, prima facie, that the subject agreement did not constitute a bindingcontract since it did not set forth the cost of the services to be performed by the plaintiff (seeMatter of Hall v Barnes, 225 AD2d 837, 838 [1996]; General Motors Acceptance Corp. vChase Collision, 140 Misc 2d 1083, 1086 [1988]; see generally Matter of Express Indus.& Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999]), or specifyany method by which such cost would be determined (see Cobble Hill Nursing Home vHenry & Warren Corp., 74 NY2d 475, 483-484 [1989], cert denied 498 US 816[1990]; Matter of McManus, 83 AD2d 553, 554 [1981], affd 55 NY2d 855[1982]). In opposition, the plaintiff failed to raise a triable issue of fact as to the existence of abinding contract (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
We do not consider the defendant's contention that the cause of action to recover on anaccount stated should be dismissed on the ground that there was no agreement with respect to theamount of the balance due, since it was improperly raised for the first time in the defendant'sreply papers, and not considered by the Supreme Court (see Stock v Morizzo, 92 AD3d 672 [2012]; Goldman v A&E Club Props., LLC, 89AD3d 681, 683 [2011]).
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson, Hall andAustin, JJ., concur.