| Merrimack Mut. Fire Ins. Co. v Alan Feldman Plumbing &Heating Corp. |
| 2013 NY Slip Op 00186 [102 AD3d 754] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Merrimack Mutual Fire Insurance Company, as Subrogeeof David Karson and Another, Appellant, v Alan Feldman Plumbing & HeatingCorp., Respondent. |
—[*1] Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Steven Bundschuh of counsel), forrespondent.
In an action to recover for damage to property, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Galasso, J.), entered September 7, 2011, whichgranted the defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaintbased on the doctrine of res judicata.
Ordered that the order is affirmed, with costs.
In 2009, David Karson commenced a small claims action in the District Court,Suffolk County, to recover for property damage to his home that allegedly resulted fromnegligent plumbing work performed by the defendant. After a trial, the District Courtdismissed the action on the ground that Karson failed to meet his burden of proving thatthe defendant acted negligently. Subsequently, the plaintiff insurance companycommenced this action against the defendant in the Supreme Court, alleging that it hadpaid Karson and his wife (hereinafter together the Karsons) the sum of $29,907.15 inconnection with their claim under an insurance policy for the subject property damage,and that the defendant was liable to the plaintiff as subrogee of the Karsons for thatproperty damage.
The Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) (5) to dismiss the complaint based on the doctrine of res judicata (see Ryan v NewYork Tel. Co., 62 NY2d 494, 500 [1984]). While Uniform District Court Act§ 1808, as amended in 2005, provides that a small claims judgment "shall not bedeemed an adjudication of any fact at issue or found therein in any other action or court,"the Legislative history for the 2005 amendment clearly indicates that this language refersto "issue preclusion," as opposed to "claim preclusion," and that the Legislature did notintend for a plaintiff who loses a small claims action to be able sue again on the sameclaim (see Mem of Assembly Sponsor, Bill Jacket, L 2005, ch 443 at 3; seealso Gerstman v Fountain Terrace Owners Corp., 31 Misc 3d 148[A], 2011 NY SlipOp 50988[U] [2011]; Chorekchan v Forman, 18 Misc 3d 127[A], 2007 NY SlipOp 52362[U] [2007]; cf. McGee v J. Dunn Constr. Corp., 54 [*2]AD3d 1010 [2008]; Katzab v Chaudhry, 48 AD3d 428 [2008]). We note thatour decisions in Katzab vChaudhry (48 AD3d 428 [2008]) and McGee v J. Dunn Constr. Corp. (54 AD3d 1010 [2008])are not to the contrary, as the claims in those cases were not the same as the onespreviously asserted in small claims actions. Here, the plaintiff insurance company's claimto recover for property damage to the Karsons' home allegedly caused by the defendant'snegligence is the same as the claim brought by its subrogee David Karson in the DistrictCourt, which was dismissed after trial. Since the Karsons would be barred by the doctrineof res judicata from asserting the claim, the claim of the plaintiff, as subrogee of theKarsons, is similarly barred (seeWestport Ins. Co. v Altertec Energy Conservation, LLC, 82 AD3d 1207, 1209[2011]). Skelos, J.P., Leventhal, Chambers and Lott, JJ., concur.