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Brian Rind D.V.M., P.C. v All Sentient Beings, Inc.
2015 NY Slip Op 50509(U) [47 Misc 3d 1207(A)]
Decided on April 9, 2015
District Court Of Nassau County, First District
Fairgrieve, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 9, 2015
District Court of Nassau County, First District


Brian Rind D.V.M., P.C., d/b/a GREAT NECK ANIMAL HOSPITAL, Plaintiff(s)

against

All Sentient Beings, Inc. and GREGG MAYER, Defendant(s)




CV-017501-14



Peter Seideman, Esq., Attorney for Plaintiff, 136 East Main Street, East Islip, New York 11730, 631-224-4040;

O'Melveny & Myers LLP, Attorneys for Defendants, 7 Times Square, New York, New York 10036, 212-326-2000.


Scott Fairgrieve, J.

The following named papers numbered 1 to 4 submitted on this Motion on March 30, 2105

papers numbered

Notice of Motion and Supporting Documents1Memorandum of Law in Support of Motion 2

Opposition to Motion 3

Reply Memorandum of Law in Further Support of Motion 4

Defendant moves for an order granting defendants' motion to dismiss the present action pursuant to CPLR 3211(A)(5). Defendants contend that the present action must be dismissed on the grounds of res judicata because Judge Murphy had dismissed the prior complaint for failure to state a cause of action. Plaintiff contends that the present action may be maintained despite the prior dismissal.

Plaintiff commenced this action against defendant to recover the sum of $12,336.14 for [*2]veterinary services rendered for defendants All Sentient Beings, Inc. and Gregg Mayer. It is alleged in the verified complaint, dated October 29, 2014, that All Sentient Beings is an animal rescue group and that Gregg Mayer is the President of All Sentient.

The first cause of action alleges that plaintiff performed veterinary services (vaccinations, surgery, hospitalization and boarding) for rescue cats for the period from June 5, 2011 through November 21, 2013. Plaintiff alleges that it sent defendants regular billing statements for the services performed. Copies of the billing statements are attached to the complaint as Exhibit A. The court notes invoices dated from June 28, 2011 (November 8483) through May 2, 2012 (November 21840) are attached; nothing subsequent is attached.

Plaintiff also attaches to the verified complaint as Exhibit B, a detailed printout report of the services provided by plaintiff for the defendants. This 53 page report runs from the period of June 1, 2011 through January 30, 2014 and lists the name of each rescue cat with the services provided.

Plaintiff alleges that $17,336.14 was outstanding and that defendants paid $5,000.00 leaving an account stated balance of $12,336.14. Demand has been made for payment.

The second cause of action incorporates Exhibits A & B by reference. It seeks to recover $12,336.14 for veterinary services performed at defendants' request. Demand for payment has been made.

The third cause of action is based upon quantum meruit to recover the reasonable value of the veterinary services performed at the request of defendants. Demand for payment has been made.

A prior action was commenced by Great Neck Animal Hospital against All Sentient Beings, Felicia Vernaskas, Gregg Mayer, and Alex Booth in the Nassau County District Court, under Index No. 005939-14. The difference between this present action and the prior action is that Brian Rind, D.V.M., P.C. is bringing the action under the d/b/a Great Neck Animal Hospital, and Felicia Vernaskas and Alex Booth have been eliminated as defendants. This court views both actions as arising from the same subject matter — whether the defendants are liable for veterinary services.

In the prior action, defendants moved to dismiss the complaint pursuant to CPLR 3211(A)(7) for failure to state a cause of action. Judge Murphy granted the motion to dismiss for failure to state a cause of action. Judge Murphy also denied the cross motion for leave to amend the complaint. The court dismissed the prior action because:

Although the plaintiff is not required to annex to the complaint a copy of the contract upon which its claims are based, the pertinent provisions of the contract must be set forth in the complaint (see Stabulas v. Brooks Piece Dye Works Corp., [*3]111 AD2d 803, 804 [2d Dept 1985]; Berdych v. Bell Aerospace Corp., 19 AD2d 582 [4th Dept 1963]; Board of Managers of Mirmar Condominium v. Terra Nova LLC, 2013 NY Misc LEXIS 6125; 2013 NY Slip Op 33298[U] [Sup Ct, Qns Co. 2013]). A review of the instant complaint reveals that within its two (2) causes of action, the plaintiff vaguely suggests that the defendants collectively entered into a "veterinary medical service agreement" with the plaintiff. It is further alleged that the defendants' failure to pay the "agreed upon value" of the plaintiff's "veterinary services and general medical care" entitles it to not only the value of the services but also attorney's fees.

However, the plaintiff does not attach a copy of the contract to the complaint; nor does it set forth the provisions upon which its claim is based. Furthermore, the complaint fails to identify the relationship between the individual defendants and the defendant entity All Sentient Beings. In fact, other than stating their respective places of residence, the complaint does not identify the defendants at all. Indeed, the complaint refers to all of the defendants collectively, as if they were one entity without individual roles or responsibilities.

Despite these obvious deficiencies in the complaint, the plaintiff, in opposition to the motion of All Sentient Beings and Gregg Mayer, focuses upon alleged procedural deficiencies in the motion papers of those defendants, in a misguided attempt to argue that their motion should be dismissed. Nevertheless, perhaps in recognition of the weakness of not only this argument but also its complaint, the plaintiff alternatively cross-moves for leave to amend the latter.

It is well settled that leave to amend the pleadings shall be freely given absent prejudice or surprise resulting from the delay, unless the proposed amendment is palpably improper or is totally devoid of merit as a matter of law (see CPLR 3025[b]; Seidman v. Industrial Recycling Props., 83 AD3d 1040 [2d Dept 2011]; Bennett v. Long Island Jewish Medical Center, 51 AD3d 959 [2d Dept 2008]; Leszcynski v. Kelley & McGlynn, 281 AD2d 519, 520 [2d Dept 2001]). In the instant matter, the annexed proposed amended complaint contains the same deficiencies as the original complaint. One notable difference is that the plaintiff annexes to the amended complaint a document which it describes as "a detailed print out report of the services provided by the plaintiff ... for the defendants" (Proposed Amended Complaint, Paragraph 9). Regardless, this printout is neither an agreement nor an invoice or bill sent to the defendants. Further, the plaintiff still never specifically identifies the nature of its claim. In fact, the plaintiff's inability to set forth any theory for its claim is emphasized by its description of its claim in Paragraph 15 of the proposed amended complaint as "breaching the actual and/or implied contract between the parties." Notwithstanding the same, in Paragraph 17, the plaintiff asserts that it is entitled to attorney's fees pursuant to the "veterinary medical service agreement" since it was required to employ legal [*4]services to collect the amount due on the agreement.

Since the plaintiff has wholly failed to set forth in its complaint or its proposed amended complaint, any cognizable theory to support its claim, the motion of All Sentient Beings and Gregg Mayer, the initial motion, which seeks dismissal of the complaint insofar as asserted against each of them, respectively, is GRANTED. The cross-motions of Booth and Vernaskas, each seeking dismissal of the complaint, are GRANTED there being no opposition thereto. The plaintiff's cross motion for leave to amend the complaint is DENIED. As such, the complaint is dismissed in its entirety.

Plaintiff now brings the present action without seeking prior court permission. Defendant contends that the present action is barred by res judicata and should be dismissed.

The Practice Commentary, Section 3211:67 entitled Impact of Dismissal Under CPLR 3211(A)(7) states:

The objection of failure to state a cause of action under CPLR 3211(a)(7) today tests not just the face of the pleading, but its basic merits as well. See Commentary C3211:25 above.

If the paragraph 7 dismissal is based solely on the facial insufficiency of the pleading of the cause of action, the plaintiff may sue anew with a complaint that corrects the deficiency. See Addeo v. Dairymen's League Co-op. Ass'n, 47 Misc 2d 426, 262 NYS 2d 771 (1965). But if the complaint in the second suit is "virtually identical" to the one dismissed for insufficiency in the first, res judicata will be a basis for the second's dismissal. Flynn v. Sinclair Oil Corp., 20 AD2d 636, 246 NYS2d 360 (1st Dep't) aff'd 14 NY2d 853, 251 NYS2d 967, 200 NE2d 633 (1964).

A dismissal based not on a pleading deficiency, but upon substantive proof that there is no claim, will of course carry res judicata consequences. That will also be the case if the court on the paragraph 7 motion in the first action elected under CPLR 3211(c) to treat the motion as one for summary judgment and granted it as such. See Commentary C3211:68 below.

In Addeo v. Dairymen's League Co-Op Ass'n, 47 Misc 2d 426, 262 NYS2d 771 (Sup Ct, NY Co 1965) the defendant moved for dismissal in part because the prior complaint between the same parties was dismissed pursuant to CPLR 3211(A)(7). The court declined to dismiss the new complaint in spite of the prior dismissal because:

It may be noted preliminarily that a final order of dismissal of a complaint [*5]for insufficiency does not preclude another action upon the same transaction merely because there was no compliance with CPLR 3211 (subd. [e]) and leave to replead was not granted. The second action is maintainable if the complaint is good. The complaint in this action is by no means similar to the complaint in the first action and it is good. The prior action it is said, is pending because an appeal has been taken from the order of dismissal. However, leave has been granted to withdraw that appeal and therefore the prior action is not now pending.

In contrast, in Flynn v. Sinclair Oil, 20 AD2d 636, 246 NYS2d 360 (1st Dept 1964) the Court dismissed the second action on the doctrine of res judicata. The Court found that the second complaint was virtually identical to the first complaint that was dismissed for failure to state a cause of action. The First Department cited Linton v. Perry Knitting Company, 295 NY 14, 64 NE2d 270 (1945) for its holding.

In Linton, supra, the prior action was dismissed because of statute of limitations and workmen compensation provided the sole remedy of plaintiff and the exclusive liability of the defendant.

In the second action, the Court of Appeals dismissed the second complaint because it was virtually a copy of the first complaint which was dismissed. The Court upheld the dismissal because the second complaint failed to remedy the defects on omissions contained in the first complaint. The Court indicated that the second action would be allowed if the problems had been corrected in the second complaint:

The former judgment was a final determination that for either of two several legal reasons the allegations of the earlier complaint were without more quite ineffectual. Such a determination, whether right or wrong, is a bar to another action for the same cause, unless the defects or omissions adjudged to be present in the one action are corrected or supplied by the pleadings in the other. Joannes Brothers Co. v. Lamborn, 237 NY207, 142 NE 587. The complaint now before us is virtually a copy of its predecessor. Hence dismissal of the present action was validly directed, even if the judgment in the earlier action was not a judgment on the merits a point that we do not decide. Cf. Civil Practice Act, s 482; Richard. v. American Union Bank, 253 NY 166, 170 NE 532, 69 ALR 667; Brick v. Cohn-Hall-Marx Co., 283 NY 99, 104, 27 NE2d 518; 2 Freeman on Judgments (5th ed.), ss 745, 746, 747; Restatement, Judgments, ss 49, 50.

The issue before this court is whether the second complaint in the present action corrected the defects cited by Judge Murphy in the dismissal.

A thorough review of the present complaint indicates that it properly pleads causes of action to recover for veterinary services allegedly rendered by the plaintiff at the request of the defendants. The allegations are quite specific that over a period of time defendants requested that medical and other services be provided for rescue cats.

Conclusion

The motion to dismiss the present action is denied.

Defendants shall proceed to file an answer in this matter.

This case is set down for a conference at First District Court, 99 Main Street, Hempstead, New York, on May 27, 2015 at 10:00 a.m., Civil 1, Room 279.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:April 9, 2015