Sirleaf v. Soel Lounge Inc.

Sirleaf v Soel Lounge Inc. 2023 NY Slip Op 34585(U) December 14, 2023 Supreme Court, Kings County Docket Number: Index No. 521395/2021 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 01/05/2024 12:28 PM INDEX NO. 521395/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 01/05/2024

I/

At At an IAS lAS Part Part 83 of of the the Supreme Supreme Court Court of of the State State of of New New York York held held in and for the County County ofof Kings Kings at 360 Adams Adams Street, Street, Brooklyn, New Brooklyn, New York, York, on the -_ day of of <l)cemner _q)cemher 2023.

2023.

PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF · NEW NEW YORKYORK COUNTYCOUNTY OF KINGS KINGS --------------------------------- -------------------------------------X ----------------------------------------------------------------------J( Index Index No: 521395/2021 521395/2021 AIDA AIDA A. SIRLEAF, SIRLEAF, Motion Motion Seq. 1-2 Plaintiff(s) Plaintiff( s) -against- -against- ORDER ORDER SOEL SOEL LOUNGE LOUNGE INC. INC. D/B/A D/B/A EMBASSY EMBASSY LOUNGE, LOUNGE, Defendant( Defendant( s) ----------------------------- ----------------,-------------.-·X ----------------------------------------------------------------------J( The The following following e-filed e-filed papers papers read read herein: herein: NYSCEF Nos.: NYSCEFNos.: Notice Notice ofMotion/Affurnation of Motion/Affirmation in Support/Affidavits Support/Affidavits Annexed Annexed Exhibits Exhibits Annexed/Reply Annexed/Reply .......... . 5-24; 5-24; 44-46 44-46 Affirmation Affirmation in Opposition/ Opposition! Affidavits Affidavits Annexed/Exhibits AnnexedlExhibits Annexed Annexed ........... . 30-35 30-35 Notice Notice ofMotion/Affurnation of Motion/Affirmation in Support/Affidavits Support/Affidavits Annexed Annexed Exhibits Exhibits Annexed Annexed .......... . 25-29 25-29 Affirmation Affirmation in Opposition/Affidavits Opposition! Affidavits Annexed/Exhibits Annexed/Exhibits Annexed Annexed ........... . 37-43 37-43

In this this action, action, Soel Lounge Lounge Inc. D/B/A Embassy D/B/A Embassy Lounge Lounge ("Defendant") ("Defendant") moves moves (Motion (Motion Seq. l}for l)for an order order pursuant pursuant to CPLR CPLR 321 l(a)(5) dismissing 3211(a)(5) dismissing Aida Aida A. Sirleafs Sirleafs ("Plaintiff') ("Plaintiff') complaint complaint on the grounds grounds of of res judicata judicata and and collateral collateral estoppel. estoppel. Defendant Defendant also also moves moves for an order order pursuant pursuant to CPLR CPLR 321 l(a)(4) dismissing 3211(a)(4) dismissing Plaintiffs Plaintiffs complaint complaint on on the ground ground of of duplicative duplicative litigation litigation because because there there is another another action action pending pending between between the same same parties parties for the same same cause cause of of action. action. In the the event that Defendant's event that motion is denied, Defendant's motion denied, Defendant Defendant requests extension oftime requests an extension of time to file an answer answer to the the complaint. complaint. Plaintiff Plaintiff has opposed opposed the motion motion on on the the ground ground that that CPLR CPLR 205 , ' permits permits refiling refiling of of a lawsuit lawsuit that that was was not not dismissed dismissed on the merits. merits. Plaintiff Plaintiff moves moves (Motion (Motion Seq.

2) for a default judgment against default judgment Defendant for failure against Defendant failure to appear appear and/or and/or serve serve an an answer answer in this this action. action. Defendant Defendant has has opposed opposed the the motion motion on the ground ground that that Plaintiff Plaintiff does does not not have have standing standing to proceed proceed with with a motion motion for a default judgment as there default judgment there has not not been been a decision decision on Defendant's Defendant's motion pursuant to CPLR motion pursuant CPLR 321 3211(g)(3). l(g)(3).

This This action action arises arises out out of of an incident incident on October October 26, 2018 2018 wherein wherein Plaintiff Plaintiff sustained sustained injuries injuries at a night night club club located located at 33-02 33-02 Queens Queens Boulevard Boulevard in Long Long Island Island City, City, New New York. On or about about May May 22, 2019, 2019, Plaintiff Plaintiff commenced commenced an action action to recover recover damages damages under Index # under Index

511424/2019 511424/2019 ("Action ("Action 11"). "). Issue Issue was was joined Action 1 with joined in Action Defendant Soel with Defendant Lounge Inc. by Soel Lounge service of service of an Answer about November Answer on or about Additionally, issue November 5, Additionally, was joined issue was Defendant with Defendant joined with Keisha Keisha Taylor Taylor ("Taylor"), ("Taylor"), in Action service of Action 1 by service with Counterclaims Answer with of an Answer about Counterclaim s on or about January January 31,2020 31, 2020 (See, (See, Exhibit Exhibit "C"). "C"). An Defendant Soel Answer to Defendant An Answer Soel Lounge's cross-claims was Lounge' s cross-claims also interposed interposed by Defendant Action 1 on or about Taylor, in Action Defendant Taylor, January 31, 2020. about January about June 2020. On or about 2, 2020, 2020, a third-party third-party action action was was commenced commenced in Action American Fire against American Action 1 against & Security Fire & Security Inc. ("AFS") ("AFS") and issue issue was was joined joined in Action Action 1 with Third-Party Defendant, with Third-Party AFS by service Defendant, AFS of an service of Answer on or about Answer October 9, about October 2020.

9,2020.

On January January 6, 2021, 2021, Defendant Defendant filed a motion motion to dismiss Plaintiffs complaint dismiss Plaintiffs Action 1 complaint in Action and to preclude preclude Plaintiff Plaintiff from from offering offering evidence evidence and testimony of the trial time of testimony at the time Action 1 trial in Action for failure failure to provide court ordered provide court ordered discovery. February 9, 2021, discovery. On February Judge Knipel 2021, Judge issued an Knipel issued order order in Action Action 1 granting granting Defendant's Defendant's motion motion to the extent discovery was that discovery extent that directed to be was directed served by a date served date certain, certain, and and that failure to comply that failure order "will with the order comply with "will result Plaintiff result in the Plaintiff being being precluded from offering precluded from offering evidence evidence without further motion, need for further without the need CPLR pursuant to CPLR motion, pursuant 3126 3126 (2) without without further further order." order." On April April 20, 2021, 2021, as a result Plaintiff not of Plaintiff result of with complying with not complying Judge Judge Knipel's Knipel's order, order, Defendant moved for summary Defendant moved summary judgment Action 1 based judgment in Action that based on the fact that Plaintiff would Plaintiff would not not be able able to make out a prima make out result of case as a result prima facie case of the preclusion language preclusion language in the order. order. On On August August 9,2021, 9, 2021, Judge Judge Rothenberg Rothenberg issued order granting issued an order Defendant's granting Defendant's summary judgment summary judgment motion motion and dismissed dismissed Plaintiffs case against Plaintiff's case Defendant. On against Defendant. August 19, On August 2021, the Plaintiff 2021, Plaintiff filed filed a Notice Appeal and of Appeal Notice of motion to renew and a motion and reargue renew and September 15, on September reargue on 2021, 2021, which which was was denied denied by the the court March 1, 2023. court on March Plaintiff has 2023. Plaintiff also appealed has also decision that decision appealed that on March 17,2023, March 17, 2023, which pending a decision. which is still pending decision.

Plaintiff Plaintiff has has commenced commenced this this instant instant action action ("Action 2") seeking ("Action 2") damages for recover damages seeking to recover personal personal injuries sustained as a result injuries sustained result of of Defendant's Defendant's alleged negligence on alleged negligence 26, 2018, at October 26,2018, on October a night club located night club located at 33-02 33-02 Queens Queens Boulevard Island City, Long Island Boulevard in Long New York.

City, New of its support of York. In support motion, motion, Defendant Defendant argues argues that that this this matter matter has has been previously adjudicated been previously resolution in final resolution adjudicated to a final Action Action 1 and that that Judge Judge Rothenberg's Rothenberg's order order constitutes the merits. decision on the constitutes a final decision Defendant merits. Defendant states that states that Plaintiff Plaintiff has asserted asserted identical identical allegations both actions allegations in both between the same actions between parties and same parties that that the doctrines doctrines ofof res judicata judicata and and collateral collateral estoppel now bar estoppel now Plaintiffss claims bar Plaintiff being from being claims from relitigated. re litigated. Defendant states that Defendant states that Action Plaintiff has filed pending, as Plaintiff Action 1 is still pending, filed motions renew motions to renew and reargue and to appeal. reargue and appeal. In opposition, Plaintiff argues opposition, Plaintiff that Action argues that was dismissed Action 1 was dismissed

205. Plaintiff Plaintiff states states that that Judge Rothenberg's's order Judge Rothenberg order did not state did not state that matter that the matter was was dismissed dismissed with with prejudice prejudice or that that dismissal dismissal was based on a general was based pattern of general pattern on delay on of delay Plaintiff Plaintiff'ss behalf behalf and and therefore therefore her her decision decision was procedural outcome was a procedural from the failure resulting from outcome resulting failure to comply comply with court orders with court orders and and not ion of determination not a determinat underlying legal of the underlying their claims on their legal claims merits, merits, thus thus res res judicata and collateral judicata and estoppel are inapplicable. collateral estoppel Plaintiff claims inapplicable. Plaintiff that the instant claims that instant action was action was properly filed well properly filed well within within 6 months order dated of the order months of dated August. that the August. 9, 2021 and that Defendant timely served was timely Defendant was served on November 2021.

November 8, 2021.

If If an action action is timely timely commenced commence d and is terminated other manner terminated in any other than by a manner than voluntary voluntary discontinuance, failure to obtain discontinuance, a failure obtain personal jurisdiction over personal jurisdiction defendant, a dismissal over the defendant, dismissal of the complaint of complaint for neglect neglect to prosecute prosecute the action, o"r the action, final judgment or a final upon the judgment upon the merits, the the merits, plaintiff, plaintiff, may commence a new may commence action upon new action same transaction upon the same series of occurrence or series transaction or occurrence of transactionss or occurrence transaction occurrences s within within six months after the termination months after th_at the provided that termination provided action new action the new would would have have been been timely timely commenced commence d at the time time of commence ment of of commencement the prior of the that action and that prior action service upon service upon defendant defendant is effected effected within such six-month within such period (CPLR six-month period 205[a]). (CPLR 205 [a]). The Court of The Court of Appeals Appeals has held held that dismissal of that dismissal of an action failure to comply action for failure with discovery comply with is aa orders is discovery orders dismissal 'for dismissal 'for neglect neglect to prosecute prosecute the action' action' within meaning of within the meaning ofCPLR (Andrea vv [a] (Andrea CPLR 205[a] Arnone, Arnone, Hedin, Casker, Kennedy, and Casker, Kennedy, and Drake, Architects and Drake, Architects Landscape Architects, and Landscape P. c., Architects, P. C., 5 NY3d NY3d 514 [2005]; [2005]; Sperry Sperry Associates Federal Credit Associates Federal 218 AD3d John, 218 Credit Union v John, Dept.

AD3d 707 [2d Dept.

2023]; Morrero Morrero v Crystal Nails, 114 AD3d Crystal Nails, 2013]).

Dept. 2013]).

AD3d 101 [2d Dept.

Under Under the doctrine doctrine of of res judicata judicata a final disposition bars litigation merits bars disposition on the merits between litigation between the same same parties parties or those those in privity privity with with them, of a cause them, of of action cause of action arising of the same out of arising out same transaction or series transaction series of transactions s as a cause of transaction of action cause of action that either was that either was raised have been could have raised or could been raised in the prior raised prior proceeding proceeding (Josey (Josey v Goard, N.Y.3d 386 [20007]; Goord, 7 N.Y.3d Blue Sky, LLC [20007]; Blue Jerry's LLC v Jerry's Self Self Storage, Storage, LLC, 145 A.D.3d A.D.3d 945 [2d Dept. 2016]). For Dept. 2016]). privity includes judicata, privity For res judicata, who those who includes those are successors to a property are successors property interest, interest, those those who who control action although control an action not formal although not formal parties it, to it, parties to those those whose whose interests interests are represented action, and party to the action, represented by a party possibly co-parties and possibly co-parties to prior to aa prior action (Restateme action (Restatement, 81-90; Watts v Swiss Judgments 81-90; nt, Judgments Bank Corp., 27 N.Y.2d Swiss Bank 270 [2d Dept.

N.Y.2d 270 Dept.

1970]). Res judicata 1970]). may only judicata may only apply apply when when there judgment on the merits there is a final judgment the first merits in the action action (In re Hunter, Hunter, 4 N.Y.3d N.Y.3d 260 [2005]; Sheng Wang v Pao-Mei [2005]; Hae Sheng A.D.3d 1005 Pao-Mei Wang, 96 A.D.3d [2d Dept. [2d Dept. 2012]).

2012]). In instances instances when when a dismissal dismissal of claim occurs of a claim prior to the occurs prior of a close of the close

A.D.3d 801 [2d Dept.

2007]).

2007]).

Under Under the the doctrine doctrine of of collateral estoppel, a party collateral estoppel, precluded from party is precluded in aa 'relitigating in from 'relitigating subsequent action subsequent action or proceeding an issue proceeding an raised in a prior clearly raised issue clearly proceeding and action or proceeding prior action and decided against decided against that that party or those party or those in privity, whether or not privity, whether the tribunals not the causes of tribunals or causes action are of action are the same (Ryan the same (Ryan v New York Telephone New York 494 [1984]; N.Y.2d 494 Telephone Co., 62 N.Y.2d Bus Co., 83 Amboy Bus [1984]; Vitello v Amboy 83 AD.3d 932 [2d Dept.

A.D.3d Dept. 2011]; Arcamone-Makinano v Perlmutter, 2011]; Arcamone-Makinano A.D.3d 479 Perlmutter, 196 A.D.3d Dept.

479 [2d Dept.

2021]).

2021 ]). The The doctrine doctrine applies applies if if the the issue issue in the second action the second identical to an issue action is identical was which was issue which raised, raised, necessarily necessarily decided decided and and material action, and material in the first action, and the plaintiff had a full and fair plaintiff had fair opportunity to litigate opportunity litigate the issue earlier action issue in the earlier action (Parker Blauvelt Volunteer (Parker v Blauvelt Volunteer Fire Inc., Fire Co., Inc., 93 N.Y.2d 93 Arcamone-Makinano at 480). [1999]; Arcamone-Makinano N.Y.2d 343 [1999]; Privity, as a requirement 480). Privity, of collateral requirement of collateral estoppel, may estoppel, may be found found where where a nonparty nonparty to prior relationship with litigation has a relationship prior litigation with a party the party to the .. prior prior litigation such that litigation such that his or her her own own rights the subsequent obligations in the rights or obligations are proceeding are subsequent proceeding conditioned conditioned in one one way way or another derivative of, the rights another on, or derivative party to of the party rights of prior to the prior litigation litigation [D'Arata [D'Arata v New York Cent. Mut. Fire New York N/Y/2d 659 [1990];New Fire Ins. Co., 76 N/Y/2d State [l990];New York State Thruway Authority Thruway Dept. 2021]).

A.D.3d [2d Dept.

Authority v Ketco, Inc., 195 AD.3d 2021]).

Here, the court Here, court finds finds that that the order precluding Plaintiff order precluding from being Plaintiff from offer evidence able to offer being able evidence at the time at time of of trial trial as well Plaintiff's noncomplia well as Plaintiff's noncompliance with Judge nce with Knipel's discovery Judge Knipel's in order in discovery order which which resulted resulted in Judge Judge Rotenberg Rotenberg granting granting summary favor of judgment in favor summary judgment Action Defendant in Action of Defendant constitue constitue a final determination merits for the purposes determination on the merits judicata. As stated of res judicata. purposes of stated by the by the Appellate Appellate Division, Division, while while public policy favors public policy resolution of favors the resolution cases on of cases on the merits, a court the merits, may court may strike aa pleading strike sanction if pleading as a sanction if a party party refuses order for disclosure obey an order refuses to obey willfully fails disclosure or willfully to disclose to disclose information information which the court which the ought to have court finds ought have been disclosed. This been disclosed. drastic remedy This drastic remedy appropriate in instances is appropriate instances where where there clear showing there is a clear the failure that the showing that with comply with failure to comply discovery discovery orders orders was was willful willful and continuous. Court of Additionally, the Court continuous. Additionally, Appeals has held of Appeals the that the held that

Contrary to Plaintiff's Contrary contention, while Plaintiffs contention, August 16, Rotenberg's August Judge Rotenberg's while Judge 16,2021, order did not state 2021, order state that that the matter matter was with prejudice, dismissed with was dismissed well settled prejudice, it is well settled that order entered that an order motion on a motion entered on summary judgment for summary constitutes a disposition judgment constitutes merits and a~cordingly disposition on the merits entitled to accordingly is entitled preclusive purposes of effect for purposes preclusive effect res judicata of res collateral estoppel judicata or collateral City of (Bayer v City estoppel (Bayer of New York, New.York, AD3d 897 [2d Dept.

115 AD3d. Dept. 2014}; 2014]; Methal City of Methal v City New York, 50 AD3d of New Dept. 2008]).

654 [2d Dept.

AD3d 654 2008]).

Moreover, Moreover, the court found the court found that that the order of conditional order the conditional preclusion became of preclusion result of absolute as a result became absolute of Plaintiffs failure Plaintiff's failure to provide provicle discovery that Plaintiff and that discovery and meet her failed to meet Plaintiff failed avoid the burden to avoid her burden adverse effect adverse effect of of the the conditional order of conditional order preclusion, as she did not of preclusion, reasonable demonstrate a reasonable not demonstrate excuse for the excuse the failure failure to comply comply with with the order and the existence the order potentially meritorious of a potentially existence of meritorious cause of cause of action. action. In denying denying Plaintiff Plaintiff'ss motion renew and reargue, motion to renew court found the court reargue, the found that Plaintiff that Plaintiff failed to establish failed establish that that the court misapprehended the court the law misapprehended the the facts in granting law or the prior motion the prior granting the motion for summary summary judgment judgment dismissing complaint. Thus, dismissing the complaint. Thus, the matter adjudicated to a been adjudicated has been matter has a final Action 1. resolution in Action resolution It is undisputed undisputed that causes of that the causes action alleged of action alleged here arise from here arise the same from the transaction or same transaction series of series of transactions transactions as those Action 1 and therefore those in Action raised herein claims raised therefore all claims have and could have herein could should have should have been been raised raised in Action and are subsequently Action 1 and barred from subsequently barred from being relitigated. It is also being relitigated. undisputed that undisputed that the the same same parties parties are involved actions and that both actions involved in both currently still Action 1 is currently that Action warranting dismissal active warranting active dismissal pursuant CPLR 321 pursuant to CPLR l(a)(4).

3211(a)(4).

Accordingly, it is hereby, Accordingly, hereby, ORDERED, that ORDERED, that Defendant's motion to dismiss Defendant's motion dismiss Plaintiffs complaint is granted, Plaintiff's complaint and it is granted, and further, further, ORDERED, that ORDERED, Plaintiff's motion that Plaintiffs moot. denied as moot. motion is denied Issues not Issues not addressed either moot addressed are either without merit. moot or without merit.

This constitutes This constitutes the order of and order decision and the decision the court. of the court. I l

Hon. Joseph J.S.C. d Joseph J.S.C.

Hon ngnd Joseph Ho Supreme Court Supreme Justice Court Justice

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