Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.; op 33 Misc 3d 1226[A], 2011 NY Slip Op 52116[U]), entered November 28, 2011. The order, insofar as appealed from, granted defendant's motion to dismiss the complaint and, upon granting a separate motion by defendant for leave to reargue its opposition to plaintiff's prior motion to restore the action to the calendar, in effect, denied plaintiff's motion as academic.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In 2006, Fairfield Presidential Associates (landlord), represented by defendant herein, commenced an action against Ken Caldwell (plaintiff herein) and Lisa Caldwell to recover use and occupancy (U & O). In that action, Ken Caldwell counterclaimed for, among other things, a rent abatement. At a nonjury trial therein, landlord demonstrated that Ken Caldwell had agreed, in two so-ordered stipulations dated May 14, 2002, in different proceedings, to pay U & O, and had further agreed to waive and release all his claims against landlord. Following the trial, the Civil Court, in a decision dated June 4, 2007, awarded landlord U & O in the principal sum of $11,462.93, as against Ken Caldwell, and implicitly dismissed his counterclaims. A judgment for that amount was entered on September 14, 2007.

In July 2007, before the aforementioned judgment was entered, plaintiff commenced this action, alleging "wrongful use of civil proceeding" and "abuse of process." Subsequently, defendant moved to dismiss the complaint, based upon plaintiff's failure to state a cause of action, which motion plaintiff opposed. In an order dated June 9, 2008, the Civil Court held in abeyance both this action and defendant's motion to dismiss the complaint pending a determination of plaintiff's appeal from the September 14, 2007 judgment. The Civil Court stated that both the action and defendant's motion could be restored to the calendar upon written request of either party once the appeal had been determined. By order dated February 11, 2009, this court affirmed the September 14, 2007 judgment, finding no basis to invalidate either of the two stipulations or the judgment based thereon (see Fairfield Presidential Assoc. v Caldwell, 22 Misc 3d 133[A], 2009 NY Slip Op 50231[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff's motion for leave to reargue the appeal or, in the alternative, for leave to appeal to the Appellate Division from the decision and order of this court was denied on April 9, 2009. [*2]

In the interim, plaintiff and Lisa Caldwell (the Caldwells) commenced a federal action against defendant and landlord, among others, in the District Court for the Eastern District of New York on October 7, 2008. The federal complaint purported to set forth claims pursuant to the Fair Debt Collection Practices Act (15 USC § 1692 et seq.) (FDCPA), the Fair Credit Reporting Act (15 USC § 1681 et seq.) (FCRA), Federal Rule of Civil Procedure 11, various federal criminal statutes regarding fraud and mail fraud, and New York's General Business Law § 349, as well as claims for malicious prosecution, abuse of process and wrongful use of a criminal proceeding. The complaint also suggested various violations of the rules of professional and judicial conduct. After defendant, among others, moved for judgment on the pleadings, and the Caldwells moved to amend the complaint, Magistrate Wall issued a report and recommendation (R & R) on January 27, 2010, in which he recommended that the defense motion be granted and the complaint dismissed without leave to replead, and that the Caldwells' motion to amend the complaint be denied (see Caldwell v Gutman, Mintz, Baker & Sonnenfeldt, P.C., 2010 WL 1270190, 2010 US Dist LEXIS 30653 [ED NY Jan. 27, 2010, No. 08-CV-4207 (JFB) (WDW)]). The R & R was based upon the Caldwells' failure to state a claim upon which relief could be granted, as well as upon application of the Rooker-Feldman doctrine (D.C. Court of Appeals v Feldman, 460 US 462 [1983] Rooker v Fid. Trust Co., 263 US 413 [1923]), which, in certain cases, bars a federal action from being brought by the unsuccessful party in a prior state action. Thereafter, District Court Judge Joseph F. Bianco, in a decision dated March 30, 2010 (see Caldwell v Gutman, Mintz, Baker & Sonnenfeldt, P.C., 701 F Supp 2d 340 [ED NY 2010]) adopted most of Magistrate Wall's R & R and granted the defense motion to dismiss the complaint, but gave the Caldwells leave to replead the federal FCRA claim and to plead any violations of the New York City Consumer Protection Law (Rules of City of New York Department of Consumer Affairs [6 RCNY]). The decision essentially stated that, with respect to most of the Caldwells' claims, both the procedural and substantive requirements of the Rooker-Feldman doctrine had been met, and, if not, there were additional grounds for granting the defense motion, based on ordinary preclusion principles of collateral estoppel/res judicata, statute of limitations, and/or the failure to state a claim for which relief can be granted.^[FN1]

On May 5, 2010, plaintiff moved in the Civil Court to restore this action to the trial calendar. Defendant opposed the motion, alleging, among other things, that plaintiff's claims lacked merit and that plaintiff had failed to set forth a basis upon which relief could be granted. Moreover, defendant argued, the federal court had already dismissed as meritless the majority of plaintiff's claims against defendant. By order dated September 30, 2010, the Civil Court (Katherine A. Levine, J.) granted plaintiff's motion to restore the action to the calendar, finding that plaintiff had demonstrated potentially meritorious claims, including violations of the federal [*3]FDCPA, General Business Law § 349 and New York City Consumer Protection Law (Rules of City of New York Department of Consumer Affairs [6 RCNY] § 5-77).

Thereafter, defendant moved for leave to reargue its opposition to plaintiff's motion to restore the action to the calendar, noting that the federal court had already dismissed the very claims which the Civil Court, in its September 30, 2010 order, had permitted to be restored. Plaintiff opposed the motion. In an order entered November 28, 2011, the Civil Court (Katherine A. Levine, J.) granted defendant's motion to dismiss the complaint (which motion had been held in abeyance) and, upon granting defendant's motion for leave to reargue its opposition to plaintiff's motion to restore the action to the calendar, in effect, denied plaintiff's motion as academic. The Civil Court held that plaintiff had failed to demonstrate that he had a meritorious claim since all of the claims which plaintiff had raised against defendant in this action appeared to be challenging defendant's actions in representing plaintiff in the litigation which had resulted in the 2007 judgment in favor of landlord, and had been raised and disposed of in the federal action. Accordingly, they were barred by the doctrines of res judicata and collateral estoppel. We affirm.

All of the causes of action asserted by plaintiff against defendant in this action were disposed of against plaintiff, on the merits, in the federal action. New York has adopted a "transactional analysis approach" in deciding res judicata issues, whereby "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" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding . . . . Res judicata thus operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding" (Douglas Elliman, LLC v Bergere, 98 AD3d 642, 642-643 [2012] [citations and internal quotation marks omitted]). Here, the causes of action interposed against defendant in the present action arose out of the "same transaction or series of transactions" as the causes of action that were raised against defendant in the federal action. Consequently, the doctrine of res judicata bars this action.

To the extent that plaintiff questions the lack of evidence of landlord's status as owner of the premises and entitlement to U & O at the trial wherein landlord was represented by defendant and was awarded the September 14, 2007 judgment for U & O, we note that the judgment in favor of landlord established as a matter of law that landlord was entitled to recover U & O, regardless of what evidence was introduced at trial as to its status as the owner and/or lessor of the premises. As the issue of landlord's entitlement to U & O was "necessarily decided" in the Civil Court proceeding and plaintiff was given a "full and fair opportunity to contest the prior determination" (Buechel v Bain, 97 NY2d 295, 304 [2001]), collateral estoppel bars plaintiff from relitigating that issue.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Solomon, JJ, concur.
Decision Date: February 07, 2014