Opinion
2019–10823 Index No. 3886/17
03-16-2022
In the Matter of A. OTTAVINO PROPERTY CORP., appellant, v. INCORPORATED VILLAGE OF WESTBURY, et al., respondents.
Leavitt Kerson & Sehati, Forest Hills, NY (Paul E. Kerson of counsel), for appellant. Sahn Ward Coschignano PLLC, Uniondale, NY (Andrew M. Roth of counsel), for respondents Incorporated Village of Westbury and Tadeus Blach. Robert Bichoupan, P.C., Great Neck, NY (Carolyn Bichoupan of counsel), for respondents BR Madison, LLC, and Nassau Property Investors, LLC.
Leavitt Kerson & Sehati, Forest Hills, NY (Paul E. Kerson of counsel), for appellant.
Sahn Ward Coschignano PLLC, Uniondale, NY (Andrew M. Roth of counsel), for respondents Incorporated Village of Westbury and Tadeus Blach.
Robert Bichoupan, P.C., Great Neck, NY (Carolyn Bichoupan of counsel), for respondents BR Madison, LLC, and Nassau Property Investors, LLC.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), dated August 15, 2019. The order and judgment, insofar as appealed from, granted that branch of the motion of the respondents/defendants which was pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition and, in effect, dismissed the proceeding.
ORDERED that the order and judgment is affirmed insofar as appealed from, with one bill of costs.
The petitioner/plaintiff (hereinafter the petitioner) commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, challenging the issuance of a tax deed. In an order and judgment dated August 15, 2019, the Supreme Court, inter alia, granted that branch of the motion of the respondents/defendants (hereinafter the respondents) which was pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition as barred by the doctrine of collateral estoppel and, in effect, dismissed the proceeding. The petitioner appeals.
"The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; see Simmons v. Trans Express Inc., 37 N.Y.3d 107, 112, 148 N.Y.S.3d 178, 170 N.E.3d 733 ; Reid v. Reid, 198 A.D.3d 993, 157 N.Y.S.3d 52 ). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action [or proceeding] and is decisive of the present action [or proceeding], and [t]he party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" ( Fowler v. Indymac Bank, FSB, 176 A.D.3d 682, 684, 107 N.Y.S.3d 708 [internal quotation marks omitted]; see Matter of Dunn, 24 N.Y.3d 699, 704, 3 N.Y.S.3d 751, 27 N.E.3d 465 ; Lennon v. 56th & Park [NY] Owner, LLC, 199 A.D.3d 64, 69, 153 N.Y.S.3d 535 ). Here, the respondents established that the decisive issue in this proceeding was necessarily decided against the petitioner in a prior action pursuant to RPAPL article 15 to quiet title to real property, and the petitioner failed to demonstrate that it did not have a full and fair opportunity to contest the prior determination (see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349–350, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; Bruno v. Bank of N.Y., 172 A.D.3d 992, 995, 101 N.Y.S.3d 124 ; Schwarz v. Schwarz, 150 A.D.3d 915, 917, 56 N.Y.S.3d 122 ).
Accordingly, the Supreme Court properly granted that branch of the respondents’ motion which was pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition as barred by the doctrine of collateral estoppel and, in effect, dismissed the proceeding.
The parties’ remaining contentions need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.