Bryant v. Gulnick

212 A.D.3d 78

182 N.Y.S.3d 293

Carla F. BRYANT, Respondent—Appellant,

v. Burton GULNICK Jr., as Administrator of the Estate of Barbara A. Hyde, Respondent,andJewish Family Services of Ulster County, Inc., Appellant—Respondent.

534472

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2022

Decided and Entered: December 22, 2022

Hancock Estabrook, LLP, Syracuse (Seth M. Weinberg of Mauro Lilling Naparty LLP, Woodbury, of counsel), for appellant-respondent.

O'Connor & Partners, PLLC, Kingston (Regina Fitzpatrick of counsel), for respondent-appellant.

Law Office of Brian D. Richardson, Albany (Brian D. Richardson of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.

OPINION AND ORDER

Egan Jr., J.P. Cross appeals from an order of the Supreme Court (James P. Gilpatric, J.), entered November 4, 2021 in Ulster County, which, among other things, searched the record and granted partial summary judgment to plaintiff.

In 2018, the Ulster County Office for the Aging (hereinafter OFA), a department of the County of Ulster, had an agreement with defendant Jewish Family Services of Ulster County, Inc. (hereinafter JFS), a nonprofit corporation, to collaborate on a volunteer transportation program for senior citizens. The collaboration took the form of a Neighbor to Neighbor program in which volunteers drove senior citizens to medical appointments in their personal vehicles and were reimbursed for mileage. Barbara A. Hyde was one of those volunteers and, on January 8, 2018, agreed to drive Joyce Northacker to a medical appointment. As Hyde and Northacker were heading westbound in Hyde's 2002 Kia on State Route 28 in the Town of Shandaken, Ulster County, Hyde lost control of her vehicle and slid sideways into the eastbound lane, where she collided with a 2004 Orion bus owned by the County and operated by plaintiff. Plaintiff, Northacker and Hyde were all injured in the accident, and Hyde died later the same day.

In January 2019, plaintiff brought an application for leave to serve a late notice of claim against the County and OFA arising out of the accident. The County and OFA opposed the application and cross-moved to dismiss the notice of claim if leave was granted, arguing that the workers’ compensation benefits plaintiff had sought and received were her exclusive remedy because the accident occurred while both she and Hyde were in the course of their employment, be it volunteer or paid, with the County (see Workers’ Compensation Law §§ 11, 29[6] ). In an order entered in May 2019 (hereinafter the 2019 order), Supreme Court (Fisher, J.) granted leave to serve a late notice of claim but, agreeing that a claim against the County and OFA could not succeed because plaintiff's exclusive remedy was workers’ compensation benefits, also granted the cross motion. There is no indication that plaintiff appealed from that order.

In April 2019, plaintiff commenced the present action against the administrator of Hyde's estate, defendant Burton Gulnick Jr., as well as JFS, alleging that Hyde's negligent driving was the cause of the accident and that JFS was vicariously liable.¹ Following joinder of issue and discovery, plaintiff moved for partial summary judgment against Gulnick on the issue of liability. Gulnick cross-moved for dismissal of the complaint, arguing, among other things, that plaintiff's claim against Hyde's estate was barred by Workers Compensation Law § 29(6) and that the 2019 order precluded her from arguing otherwise.² JFS separately moved for summary judgment dismissing the complaint, incorporating the arguments raised by Gulnick. Supreme Court (Gilpatric, J.) thereafter issued an order in which it determined that the holding in the 2019 order that plaintiff and Hyde were coemployees was the law of the case and that plaintiff was therefore barred from pursuing a claim against Hyde's estate. The court accordingly granted Gulnick's cross motion. Supreme Court further held that JFS could not avail itself of the law of the case doctrine since it was not a party in the proceeding that led to the 2019 order. Supreme Court also determined that plaintiff had established that JFS was vicariously liable for the conduct of Hyde and, notwithstanding plaintiff's failure to move for summary judgment against JFS, granted summary judgment to plaintiff on the issue of JFS’ liability. JFS appeals and plaintiff cross appeals.³

Addressing the preclusive effect of the 2019 order, the law of the case doctrine does not apply to "this action[,] which is subsequent to and separate and distinct from the" one that resulted in that order ( State v. Travelers Indem. Co. of R.I., 120 A.D.2d 251, 253–254, 508 N.Y.S.2d 698 [3d Dept. 1986], appeal dismissed 69 N.Y.2d 900, 514 N.Y.S.2d 1028, 507 N.E.2d 1091 [1987], lv dismissed 70 N.Y.2d 669, 518 N.Y.S.2d 962, 512 N.E.2d 545 [1987] ; see Matter of McGrath v. Gold, 36 N.Y.2d 406, 413, 369 N.Y.S.2d 62, 330 N.E.2d 35 [1975] ; Matter of Village of Endicott [Village of Endicott Police Benevolent Assn., Inc.], 182 A.D.3d 738, 740, 122 N.Y.S.3d 162 [3d Dept. 2020] ; see generally People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ). Collateral estoppel is applicable, however, and that doctrine "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party ..., whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ; accord Parker v. Blauvelt Vol. Fire Co., Inc., 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999] ; see Matter of Terry v. County of Schoharie, 162 A.D.3d 1344, 1346, 80 N.Y.S.3d 483 [3d Dept. 2018] ).⁴ Collateral estoppel "applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" ( Parker v. Blauvelt Vol. Fire Co., Inc., 93 N.Y.2d at 349, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; see Simmons v. Trans Express Inc., 37 N.Y.3d 107, 112, 148 N.Y.S.3d 178, 170 N.E.3d 733 [2021] ).

As collateral estoppel requires that an issue was necessarily decided in the prior proceeding, "a finding which is but an alternative ground for the prior court's decision" will not ordinarily be given preclusive effect ( Malloy v. Trombley, 50 N.Y.2d 46, 49, 427 N.Y.S.2d 969, 405 N.E.2d 213 [1980] ; see Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 668, 716 N.Y.S.2d 416 [3d Dept. 2000] ). Collateral estoppel will apply, however, where the finding was "fully litigated, actually decided and ... afforded thorough and careful treatment in an opinion of the court that made clear that the judge had the possible preclusive effect of the finding[ ] in mind" ( Church v. New York State Thruway Auth., 16 A.D.3d 808, 812, 791 N.Y.S.2d 676 n [3d Dept. 2005] ; see Ross v. Medical Liab. Mut. Ins. Co., 75 N.Y.2d 825, 826, 552 N.Y.S.2d 559, 551 N.E.2d 1237 [1990] ; Malloy v. Trombley, 50 N.Y.2d at 52, 427 N.Y.S.2d 969, 405 N.E.2d 213 ; Peterkin v. Episcopal Social Servs. of N.Y., Inc., 24 A.D.3d 306, 308, 808 N.Y.S.2d 31 [1st Dept. 2005] ; cf. Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199–200, 868 N.Y.S.2d 563, 897 N.E.2d 1044 [2008] ).

Here, the County and OFA cited Workers’ Compensation Law §§ 11 and 29(6) in their motion to dismiss plaintiff's notice of claim against them. Workers’ Compensation Law § 11 provides that, with regard to his or her employer, workers’ compensation benefits "shall be exclusive and in place of any other liability to the employee or his [or her] dependents for the injury or death of the employee" ( Cunningham v. State of New York, 60 N.Y.2d 248, 251, 469 N.Y.S.2d 588, 457 N.E.2d 693 [1983] ; see Isabella v. Hallock, 22 N.Y.3d 788, 792, 987 N.Y.S.2d 293, 10 N.E.3d 673 [2014] ). Workers’ Compensation Law § 29(6), in turn, makes workers’ compensation benefits "the exclusive remedy to an employee, or in case of death his or her dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ" (see Cunningham v. State of New York, 60 N.Y.2d at 251, 469 N.Y.S.2d 588, 457 N.E.2d 693 ; Naso v. Lafata, 4 N.Y.2d 585, 589, 176 N.Y.S.2d 622, 152 N.E.2d 59 [1958] ; Roberts v. Gagnon, 1 A.D.2d 297, 301, 149 N.Y.S.2d 743 [3d Dept. 1956] ). Further, as Workers’ Compensation Law § 29(6) "deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided" ( Rauch v. Jones, 4 N.Y.2d 592, 596, 176 N.Y.S.2d 628, 152 N.E.2d 63 [1958] ; accord Isabella v. Hallock, 22 N.Y.3d at 794–795, 987 N.Y.S.2d 293, 10 N.E.3d 673 ; see Naso v. Lafata, 4 N.Y.2d at 590–591, 176 N.Y.S.2d 622, 152 N.E.2d 59 ; Szumowski v. PV Holding Corp., 90 A.D.3d 415, 415, 933 N.Y.S.2d 552 [1st Dept. 2011] ; Musso v. Hsing Wei Chien, 73 A.D.3d 466, 466, 905 N.Y.S.2d 129 [1st Dept. 2010] ; Chin Ma v. Ryder Truck Rental, 270 A.D.2d 301, 301, 705 N.Y.S.2d 243 [2nd Dept. 2000] ).

The County and OFA claimed that plaintiff did not have a valid claim against them both because they were her employer and because she and Hyde were coemployees acting in the course of their employment when Hyde's negligence purportedly caused the accident; accordingly, they could have relied upon either Workers’ Compensation Law § 11 or Workers’ Compensation Law § 29(6). A review of the papers supporting their cross motion establishes, however, that they focused upon the provisions of Workers’ Compensation Law § 29(6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court ...