Rosa v. Doe

184 N.Y.S.3d 622 (Mem)

Reynaldo ROSA, appellant,

v.John DOE, defendant,Denair HVAC, Inc., respondent.

2020–04668

Index No. 512525/17

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

Submitted—January 3, 2023

March 29, 2023

Steinberg & Gruber, Garden City, NY (Hermann P. Gruber of counsel), for appellant.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated April 6, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendant Denair HVAC, Inc., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Denair HVAC, Inc., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it is denied.

On July 6, 2016, the plaintiff, Reynaldo Rosa, allegedly was injured while riding an electric skateboard when he was struck by a van owned by the defendant Denair HVAC, Inc. (hereinafter Denair). In June 2017, Rosa commenced this action to recover damages for personal injuries against, among others, Denair.

In October 2017, Harleysville Worcester Insurance Company (hereinafter Harleysville), the insurer of the van, commenced a separate action for declaratory relief against, among others, Rosa and Denair (hereinafter the declaratory judgment action). In the declaratory judgment action, Harleysville alleged, inter alia, that Rosa's injuries were not caused by the insured van, but rather that Rosa fell due to riding his skateboard over a manhole cover. Thereafter, Harleysville moved for leave to enter a default judgment against Rosa on the ground that Rosa failed to appear or answer the complaint. In an order dated June 20, 2018, the Supreme Court, in effect, granted Harleysville's motion for leave to enter a default judgment declaring, among other things, that Rosa's injuries "did not arise from the use or operation" of the insured van.

Subsequently, Denair moved in the instant action, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it on the ground that the action was barred by the doctrine of res judicata based upon the relief granted in the declaratory judgment action. In an order dated April 6, 2020, the Supreme Court, among other things, granted that branch of the motion. Rosa appeals.

"Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ( Montoute v. Wells Fargo Bank, N.A., 208 A.D.3d 474, 474, 173 N.Y.S.3d 283 [internal quotation marks omitted]). "One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between ...