ADDITIONAL CASES Daniel McQuade, Third-Party Plaintiff v. D.F. Stone Contracting, Ltd., Third-Party Defendant The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 103-124 Answering Papers 127 Reply 128 Decision/Order Defendant/third-party plaintiff Daniel McQuade commenced the third-party action against D.F.Stone Contracting, Ltd., the contractor who installed the sidewalk upon which plaintiff Buchser tripped, for contribution, common law indemnification, and negligence. McQuade is the homeowner whose property abuts the sidewalk; therefore, it is undisputed that Huntington Town Code Section 173-16 imposes a duty upon the property owner to maintain and repair an adjacent sidewalk and liability for failure or neglect to repair or maintain such sidewalk in a safe condition. Essentially, McQuade asserts that D.F. Stone Contracting, Ltd. (DF Stone) was negligent in its construction of the sidewalk upon which the plaintiff tripped and fell. DF Stone moves this Court for an Order dismissing the third-party complaint pursuant to CPLR §3211 (a)(5), asserting that the causes of action may not be maintained because of collateral estoppel, referencing this Court’s January 25, 2022 Decision and Order dismissing the complaint as against former defendants Island Estates at Harborfields LLC and Island Estates Homes LLC (Island Estate defendants).1 In its January 25, 2022 Decision and Order, this Court determined that the former Island Estate defendants established their entitlement to dismissal of the complaint as asserted against them because they conveyed the property adjacent to the subject sidewalk to McQuade more than one year before plaintiff fell, and because Suffolk County pronounced the sidewalk work done by Island Estates’ contractor (DF Stone) as having been completed in a satisfactory manner, thereby ending any obligations they may have had vis a vis the sidewalk. This Court noted in connection with the approval of the work by Suffolk County that the bond required by the County was released upon inspection and approval of the sidewalk work, and so the Island Estates defendants had no reason to know, nor should they have known, that there was any defective condition in or on the subject sidewalk at the time they conveyed the adjoining property to McQuade. Defendant McQuade was a not only a party to the main action at the time that the Island Estates defendants made their motion, but McQuade opposed the relief requested by Island Estates by adopting the factual and legal bases for denial of that motion as set forth in plaintiff’s opposition papers. Plaintiff’s papers in opposition to the Island Estates motion maintained, inter alia, that Island Estates defendants created the dangerous condition prior to the accident, and that the work done by a third party (DF Stone), under the supervision of Island Estates, resulted in a defective sidewalk flag, which is the proximate cause of plaintiff’s accident. Plaintiff further maintained that because there were no other permits or repairs made to the sidewalk where plaintiff fell in the ten years before to her accident, then then the initial sidewalk installation was negligently done. This Court rejected that argument and granted the Island Estates’ defendants’ motion, determining that, “[o]nce the sidewalk construction was completed, the Suffolk County Director of Traffic Engineering released the bond because the County’s inspection found the work to have been completed in a satisfactory manner. The letter releasing the bond is dated May 14, 2018, more than two years before plaintiff fell.” “The doctrine of collateral estoppel, a narrower species of res judicata, 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 or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Telephone Company, 62 NY2d 494, 500 [1984]; Clifford v. County of Rockland, 140 AD3d 1108, 1109 [2d Dept 2016]). “Collateral estoppel comes into play when four conditions are fulfilled: ‘(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’” (Conason v. Megan Holding, LLC, 25 NY3d 1, 17 [2015] [internal quotation marks and citations omitted]). “The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate” (Matter of Dunn, 24 NY3d 699, 704 [2015]). It is undisputed that McQuade’s third-party action is brought as an adjunct to the main action, that he was a party to the main action when the foregoing determinations were made by this Court, that he was afforded a full and fair opportunity to litigate the issues that were determined, and that he chose to adopt the factual and legal bases asserted by the plaintiff in opposition. Moreover, the issue of the condition of the sidewalk that was litigated in the context of the Island Estates’ defendants’ motion was necessary to support the final judgment on the merits, in favor of Island Estates.2 Accordingly, DF Stone has shown the identity of the issues concerning the condition of the sidewalk upon completion of DF Stone’s/Island Estates, which was found to be satisfactory by the County of Suffolk inspector in 2018. McQuade’s opposition to the instant motion seeking dismissal on collateral estoppel grounds utterly fails to address this Court’s January 25, 2022 Decision and Order but rather states that his opposition is based upon a claim that there are “triable issues of material facts to be determined,” asserting that “D.F. Stone’s motion for summary judgment must be denied, as it has failed to establish its prima facie entitlement to summary judgment” (Affirmation in Opposition, 5). DF Stone did not make a motion for summary judgment; accordingly, McQuade’s opposition misses the mark. By failing to address the issue of collateral estoppel, McQuade has failed to demonstrate that he lacked a full and fair opportunity to litigate. By failing to address the necessary showing required of a party trying to avoid application of the doctrine of collateral estoppel, the Court reasonably concludes that McQuade concedes that this Court’s prior determination disposes of his claims against DF Stone, and that he had a full and fair opportunity to oppose the prior Island Estates motion. Accordingly, this Court’s prior determination that the sidewalk work was performed in a satisfactory manner precludes re-litigating that matter now; therefore, DF Stone’s motion is granted, and the third-party action is hereby dismissed (Montoya v. JL Astoria Sound, Inc., 92 AD3d 736 [2d Dept 2012] [defendant entitled to dismissal per doctrine of collateral estoppel because plaintiffs raised issue of sidewalk view obscured by snow and parked vehicle, which contention was rejected as speculative in first action]; Chittur v. Briarcliff Woods Condominium Association, Inc., 15 AD3d 329 [2d Dept 2005 [plaintiffs' cause of action previously determined on merits in prior action to be an Act of God, not the result of negligence; CPLR 3211 [a][5] motion granted]; Mushell v. City of New York, 2021 NY Slip Op 32096 [U] [Sup Ct New York County 2021] [Court of Claims' determination that condition of sidewalk was not dangerous resulted in collateral estoppel of same claim against City of New York]). The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [ X ] Dated: February 2, 2023
