DECISION AND ORDER On April 29, 2021 North East Underlayments, LLC (North East) contracted with Michael and Charles Schaeffer (collectively the Schaeffers) for the application of spray foam insulation to the roof, exterior walls and subfloors of their home at 10 Lake St., Lake George, NY (Premises). The contract set forth the scope of work at a cost of $19,019.49 and required a 50 percent deposit. The Schaeffers paid $9,509.75 and North East performed the work between May 12, 2021 and May 26, 2021. After the work was completed, the Schaeffers noticed damage to the windows and foam which had adhered to the exterior and roof of the premises. North East sent technicians to remove the stray spray foam but were unsuccessful. Charles Schaeffer submitted a claim to North East’s insurance carrier which resulted in a payment in the amount of $13,346.63. The release, dated June 9, 2022 and signed by Charles Schaeffer stated, “…. in consideration of partial payment in the sum of…$13,346.63, the receipt and sufficiency of which is hereby acknowledged, the undersigned, on behalf of herself/himself and her/his respective children, heirs, executors, administrators, licensees, lenders, mortgagees, creditors, insurers, successors and assigns, does hereby, partially release, acquit, hold harmless and forever discharge[s] North East Underlayments, LLC, Wesco Insurance Company and AmTrustNorth America…who are or may be claimed to be liable for the acts or omissions of the above named individuals and/or entities (none of who admit any liability) from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever. This Partial Release includes claims for window damage to be concluded by June 1, 2022, and any known and unknown (sic), arising from the incident which occurred on or about May 18, 2021, at 10 Lake Street, Lake George, NY.” (NYSCEF Document No. 16) Prior to the payment and release North East sent an invoice to the Schaeffers in August 2021 seeking the balance due of $10,841.10 (which includes $1,331.36 in sales tax). On May 23, 2023, North East commenced an action seeking to foreclose a mechanics lien against the premises (NYSCEF Index No. EF2023-71388). On September 18, 2023, defense counsel filed a notice of appearance on behalf of the Schaeffers and subsequently requested an extension of time in which to file opposition papers. The Court granted the request, but papers were never filed. On December 14, 2023 the Court granted an Order of Reference and Default. On June 28, 2024 this Court entered a judgment of foreclosure and sale. On February 29, 2024 the Schaeffers commenced a separate action alleging defendant was negligent by allowing the interior and exterior to be covered in spray foam insulation, causing damage to the premises. Damages are alleged to include the loss of use and enjoyment of the residence and rental income. Presently before the Court is North East’s motion to dismiss this complaint pursuant to CPLR 3211(a)(1), (4), (5) and (7). As relevant here a party may move for judgment dismissing causes of action on the grounds that: (1) a defense is founded upon documentary evidence; (4) that there is another action pending between the same parties for the same cause of action in a court of any state or the United States, (5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or that (7) the pleading fails to state a cause of action. The Court is most persuaded by CPLR 3211(a)(5). Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigating that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party. The judgment of foreclosure and sale is final as to all questions at issue between the parties and concludes all matters of defense which were or could have been litigated in the foreclosure action. A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised or could have been raised in the prior action (Eaddy v. U.S. Bank N.A., 180 AD3d 756, 756 [2d Dept 2020]). The Court also finds the language of the general release is as impenetrable as it is unambiguous (M.M. v. Church of Our Lady of the Annunciation, 203 AD3d 1277, 1278 [3d Dept 2022]). Having thus considered NYSCEF Document Nos. 1 through 17, 24, and 25 and oral argument having been heard on July 8, 2024 with Brian D. Mercy, Esq. appearing on behalf of plaintiffs and Marco B. Koshykar, Esq. appearing on behalf of defendant, it is hereby ORDERED that the relief requested is granted and the complaint is dismissed its entirety, and it is further, ORDERED any relief not specifically addressed herein has nonetheless been considered and is expressly denied. The above constitutes the Decision and Order of this Court. The original of this Decision and Order has been filed by the Court. Counsel for defendant is directed to serve plaintiffs with notice of entry. Dated: July 9, 2024
