RECITATION, AS REQUIRED BY CPLR§2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1-2 ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ANSWERING AFFIDAVITS 5-6 REPLY AFFIDAVITS 7-9 OTHER MEMOS OF LAW 3-4 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE COURT FINDS AS FOLLOWS: Defendant moves for an Order to dismiss: 1) pursuant to CPLR§3211 (a)(1), in that the issues in the action were determined in a prior action; 2) pursuant to CPLR §3211(a)(5), in that the documentary evidence precludes this action, Plaintiff is collaterally estopped and the action is time barred (res judicata); 3) pursuant to CPLR §3211(a)(7), in that Plaintiff does not and cannot state a cause of action; and 4) pursuant to CPLR §3211(c), in that the action should be converted to a motion for summary judgment and dismissed. Plaintiff opposes. Background: Pursuant to Plaintiff’s Complaint filed March 6, 2018, the instant action is for common law indemnity wherein Plaintiff seeks inter alia, to have Defendant Mendon (“Mendon”), pay for a judgment rendered against Plaintiff in the amount of $98,418.28 arising out of 426 parking tickets issued by the New York Parking Violations Bureau (“PVB”), between 2006 and 2014. Plaintiff asserts that on September 11, 2014, a default judgement was entered against Plaintiff by the PVB for the aforestated amount, plus interest and penalties. Plaintiff asserts that it did not respond because it never received any prior, contemporaneous notice from Mendon or the PVB of said parking violations. Plaintiff Master Purveyors (“Master”), was a commercial meat provider, engaged in the business of delivering meat products. Master leased a number of trucks from Mendon, who was and continues to be in the business of truck leasing. On November 4, 2012, following the subject “Judgment” rendered against Plaintiff, the Department of Finance Administrative Law Judge (“ALJ”), issued a decision and order wherein she found that it was “inconceivable that plaintiff overlooked” the relevant notices (Exh. “B”). Mendon was not made a party to the action, nor was it subpoenaed to participate in same. On January 9, 2015, Plaintiff commenced an Article 78 proceeding seeking judicial review of the ALJ’s decision/order (Exh. “C”). On May 18, 2017, the Article 78 proceeding was dismissed by Hon. Margaret Chan, (Exh. “D”). However, on January 23, 2018, Plaintiff commenced the instant action (Exh. “E”). Positions of the parties: Mendon asserts that in support of its motion, it has produced, in admissible form, its standard rental agreement dated February 27, 2017, with Plaintiff, which expressly provides in Section 14, that defendant/movant is not responsible for “all parking fines…and traffic violations fines and penalties.” Mendon points out that said rental agreement is duly authenticated and submitted in evidentiary form as a business record. More importantly, Mendon argues that Justice Chan’s Order held that Mendon duly participated in the Rental Assignment Program, in which said program placed Plaintiff on notice of any parking tickets it received while using Mendon leased vehicles. Mendon argues that Plaintiffs action warrants dismissal because Mendon duly participated in the Rental Assignment Program and the matter has previously been fully litigated to conclusion in two forums. Additionally, Mendon argues that the rental agreement also contractually eliminates any responsibility on its part. Mendon also argues that Plaintiff’s new theory of indemnification cannot survive based on the legal theories of collateral estoppel and res judicata. Mendon points out that collateral estoppel prevents a party from re-litigating an issue which has previously been decided in a prior proceeding where there was an opportunity to fully litigate the issue. Moreover, res judicata also preludes a party from re-litigating the same issue in a later action. Mendon further argues that the subject action is barred by contract and by time. Mendon argues that Plaintiffs payment of the Judgment bars its claim that Mendon is responsible for the violations. Since Plaintiff’s Complaint alleges in pertinent part that “in July 2017, Master Purveyors paid the Judgment, with interest totaling $113,254.60,” this payment evidences the contractual arrangement vis-a-vis the rental agreement, wherein Plaintiff must pay for its own parking violations. Additionally, Mendon argues that the action warrants dismissal as it is time barred, because a cause of action for breach of contract must be commenced within six years, accruing at the time the breach occurred. Since the Judgment emanates from tickets issued in 2016 and thereafter, and the instant action was commenced on January 23, 2018, it is time barred. Mendon also argues that a three year statute of limitations is applicable to common law indemnification. As such, accrual of same commenced on January 23, 2018, when the Complaint was filed. Plaintiff asserts that “Master commenced an administrative action and subsequently, an Article 78 Proceeding, to vacate the default judgment, but only 7 of the 426 tickets were deemed to be timely challenged and so the administrative law judge held that there was no jurisdiction to hear a challenge of the overwhelmingly majority of summonses” (Plaintiff’s Memo of Law, p. 1, 2). As such, Plaintiff now argues that no determination was ever made as to the remaining 419 summonses because those tickets were outside of the one year time limit for making an administrative challenge. Thus, Mendon’s failure to apprise Plaintiff of the parking violations on vehicles Plaintiff owned, left Plaintiff with no recourse to challenge the tickets. Plaintiff argues that Mendon seeks to impermissibly extend the prior limited ruling made to only the select 7 tickets to all the tickets and give the limited ruling preclusive effect to all tickets, despite the fact that the ALJ found no jurisdiction to make a determination as to the remaining 419 tickets. Plaintiff points out that no determination was made on the merits of the remaining 419 tickets. Therefore, Plaintiff argues that Mendon’s reliance on the doctrines of collateral estoppel and res judicata is misplaced because the issues and claims framed for resolution were not previously decided. Moreover, indemnity was never previously pled. Conclusions of law: Mendon’s motion seeks dismissal of Plaintiff s Complaint pursuant to CPLR §3211(a)(1), (a)(5), and (a)(7) on the grounds of documentary evidence, statute of limitations, and failure to state a claim. Pursuant to the doctrine of res judicata, or claim preclusion, “a valid final judgment bars future actions between the same parties on the same causes of action” (Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347 [1999]; see Matter of Hunter, 4 N.Y.3d 260, 269 [2005]; Highlands Ctr., LLC v. Home Depot U.S.A., Inc., 149 A.D.3d 919, 921 [2d Dept. 2017]). “One linchpin of res judicata is an identify of parties actually litigating successive actions against each other: the doctrine apples only when a claim between the parties has been previously brought to a final conclusion” (Blue Sky, LLC v. Jerry’s Self Store., LLC, 145 A.D.3d 945,947 [2d Dept. 2016]),(emphasis added). Collateral estoppel, or issue preclusion, is “a component of the broader doctrine of res judicata” which provides that, “as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action” (Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 455 [1979]). The Court has reviewed the decisions of the ALJ and Justice Chan. Indeed, the DECISION AND ORDER rendered by the ALJ clearly denying the motion to vacate the judgment, states in pertinent part, the “[Respondent's claim of lack of any notice pertaining to the summons before judgement was entered is not persuasively established….Here, no evidence is presented that the service copy of the summons was not received….." In her Decision/Order, Justice Chan stated in pertinent part, that "[T]o the extent that the administrative determination was the denial of petitioner’s request for a hearing to open the default judgment for all 426 summonses, the denial was made in accordance to the statutory one year to time limitation placed on it (19 RCNY §39-10[i]). All but 7 of the summonses were beyond one year on the entry of the judgment. A hearing was convened for the 7 summonses. Thus, the determination denying petitioner’s request for a hearing to open the default judgment on those summonses beyond the one year statutory time frame is not arbitrary and capricious or contrary to law.” The Court also reviewed the RENTAL AGREEMENT promulgated by Mendon. Paragraph 14 is entitled “PARKING, ILLEGAL DUMPING FINES, ILLEGAL VENDORING, AND TRAFFIC VIOLATIONS.” It states in pertinent part that, “Customer shall pay all parking fines, illegal dumping fines, illegal vendoring fines, and traffic violation fines and penalties and agrees to pay, indemnify and hold Lessor harmless in the event Lessor pays such fines and penalties……..” Here, the Court first notes that it cannot and need not “convert” the instant motion to a summary judgment motion. Indeed, all the submitted documentary evidence clearly and unequivocally absolves Mendon of any responsibility for payment of the subject tickets. There is no legal theory upon which Plaintiff can prevail, and this Court wonders when Plaintiff intends to give up the proverbial ghost. Therefore, in accordance with the following, it is hereby: ORDERED, that Defendant’s Motion is granted pursuant to CPLR§3211(a)(1), CPLR §3211(a)(5) and CPLR §3211(a)(7). This constitutes the decision and order of the Court. Dated: March 19, 2021
