The Court has considered the following in consideration of its determination: 1. Notice of Motion (Mot. Seq. 001), Exhibits, Affirmation in Support, (Doc 2-16) 2. Affirmation in Opposition to Motion, Memorandum of Law, Exhibits (Doc 20-23) 3. Affirmation in Reply (Doc. 24) It is ORDERED that the Defendant’s motion (Mot. Seq. 001) to dismiss the complaint is granted. In this breach of contract action, the Plaintiff Wawaloam Reservation Inc. (“Wawaloam”) seeks damages for the failure of the Defendant Bold Broadcasting LLC (Bold”) to abide by a contract which the parties executed on or about May 26, 2020 to operate a light show on the Plaintiff’s campground each year for three years. The complaint alleges that Bold breached the contract by failing to employ their own people, plow snow, sand and salt the campground, remove their equipment, manage the property during the light show, provide accurate ticketing, reimburse Wawaloam for maintenance fees, and to communicate with Wawaloam. The instant action was commenced on October 23, 2023. Procedurally, Bold commenced a prior action on October 22, 2022, captioned Bold Broadcasting LLC d/b/a Bold Media v. Wawaloam Reservation Inc., Index Number 204154/2022, alleging that Wawaloam breached the contract by hiring one of Bold’s subcontractors without Bold’s consent to operate a holiday light show in 2022, causing damages. There is no dispute that Wawaloam did not serve an answer. Bold obtained a default judgment from the Clerk of the Court, Suffolk County, on December 14, 2022. Wawaloam moved by Order to Show Cause on May 10, 2023 seeking to vacate the judgment, which this Court denied by Order dated July 12, 2023 (Garguilo, J.). Wawaloam’s motion to reargue was denied by Order dated October 23, 2023 (Garguilo, J.). The Court takes judicial notice that Wawaloam did not pursue an appeal. The Defendant Bold now moves (Mot. Seq. 001) to dismiss on the ground that the action is barred by the doctrine of res judicata pursuant to CPLR 3211 (a) (5), and for sanctions in the form of attorney fees. In support, the Defendant cites, inter alia, Eagle Ins. Co. v. Facey (272 AD2d 399, 400, 707 NYS2d 238 [2d Dept 2000]), which holds that res judicata applies “to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior [action].” Counsel affirms that he called Wawaloam’s counsel to discuss the legal ramifications of res judicata and requested that he discontinue the action. In opposition, the Wawaloam contends it commenced this action because it did not have the chance to assert a counterclaim in the prior action. Wawaloam further claims, without legal authority, that counterclaims that were never asserted are not barred by res judicata especially when a decision in favor of Wawaloam would not undermine the judgment in Wawaloam’s favor in the prior case. In addition, Wawaloam states that its claims are not barred by res judicata as a matter of right because the prior action was never decided on the merits. This State has adopted the transactional analysis approach in deciding res judicata issues (see Matter of Reilly v. Reid, 45 NY2d 24, 407 NYS2d 645 [1978]). Pursuant to the doctrine of res judicata, a valid final judgment which has not been vacated bars future actions between the same parties on the same cause of action (see Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 414 NYS2d 308 [1979]), “even if based upon different theories or if seeking a different remedy” (O’Brien v. Syracuse, 54 NY2d 353, 357, 445 NYS2d 687 [1981]). Here, res judicata effect is given to the default judgment in the prior action (83-17 Broadway Corp. v. Debcon Fin. Servs., Inc., 39 AD3d 583, 585, 835 NYS2d 602 [2d Dept 2007], citing Rosendale v. Citibank, N.A., 262 AD2d 628, 691 NYS2d 901 [2d Dept 1999]). Wawaloam’s allegations against Bold concern breaches of contract which formed the basis of the prior action commenced by Bold. Since Wawaloam defaulted in the prior action and did not successfully move to vacate its default, the matter was brough to its final conclusion, and the default judgment entered in that action precludes it from litigating the purported breaches by Bold in this action (Outdoors Clothing Corp. v. Schneider, 153 AD3d 717, 720, 60 NYS3d 302 [2d Dept 2017]). Thus, Wawaloam’s action for breach of contract is foreclosed by the doctrine of res judicata. The Court declines to award sanctions. Accordingly, it is ORDERED that the motion (Mot. Seq. 001) by Defendant Bold Broadcasting LLC is granted to the extent that the action is dismissed. CASE DISPOSED The foregoing constitutes the decision and ORDER of this Court. Dated: February 28, 2024
