Opinion
2013-349 S C
01-15-2015
Bay Crest Association, Respondent, v. Suzanne DeLisi, Appellant.
PRESENT: : , TOLBERT and GARGUILO, JJ.
Appeal from a judgment of the District Court of Suffolk County, Third District
(C. Stephen Hackeling, J.), entered December 5, 2012. The judgment, entered pursuant to an order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the sums of $6,870 in unpaid assessments and $8,130 in attorney's fees, for a total principal sum of $15,000.
ORDERED that the judgment is affirmed, without costs.
Plaintiff Bay Crest Association (Association) was incorporated in 1905 to own and operate a private community known as Bay Crest, located in the Village of Huntington Bay in Suffolk County. In this action, it seeks to recover unpaid annual assessments from defendant for calendar years 2008, 2009 and 2010, as well as attorney's fees. Following the joinder of issue, the District Court ordered that this action be jointly heard with Bay Crest Assn. v Paar, the appeal in which action is decided herewith ( Misc 3d , 2014 NY Slip Op [appeal No. 2013-1076 S C] [the Paar action]).
The initial complaint named plaintiff as "Bay Crest Association, Inc." After plaintiff moved for a default judgment, defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), on the ground that, since plaintiff had been incorporated as Bay Crest Association, the named plaintiff did not exist and therefore lacked standing to sue her. In its opposition to defendant's cross motion, plaintiff's attorney explained that, at the time plaintiff was incorporated in 1905, corporations had not been required to employ a corporate signifier in their names. Although, following the adoption of the Business Corporation Law in 1961, newly formed domestic corporations were required to employ corporate signifiers in their names (see Business Corporation Law § 301 [a] [1]), Business Corporation Law § 302 (b) (1) exempted preexisting corporations, such as plaintiff, from that requirement. Nevertheless, he stated, plaintiff had informally used the corporate signifier "Inc." in its name to indicate its existence as a corporation. Plaintiff's counsel expressed the intention to serve and file an amended complaint, to reflect plaintiff's legal name. Plaintiff thereafter served an amended complaint, which differed from its original complaint only in its elimination of the signifier "Inc." from its name. Defendant's cross motion was denied as moot, and defendant was permitted 35 days in which to answer the amended complaint.
Plaintiff moved for summary judgment, and defendant cross-moved jointly with Louis Paar, the defendant in the Paar action, for summary judgment. Plaintiff's motion was granted, and the cross motion was denied. Plaintiff was awarded, against defendant DeLisi, the sum of $6,870, covering annual assessments for calendar years 2008, 2009 and 2010, and attorney's fees of $8,130, for a total principal judgment amount of $15,000. This appeal by defendant ensued.
Plaintiff's moving papers set forth that in 2007, plaintiff had sued defendants DeLisi and Paar, in Supreme Court, Suffolk County, under the name of Bay Crest Association, Inc., to recover annual assessments from them for 2005, 2006 and 2007 (the 2007 Supreme Court action). In that action, plaintiff's right to collect annual assessments from its shareholders, and specifically from defendants DeLisi and Paar, was established (see Bay Crest Assn., Inc. v Paar, 2008 NY Slip Op 33111[U] [2008], affd 72 AD3d 713 [2010]). Since defendant had a full and fair opportunity to contest the 2007 Supreme Court action, we find that, pursuant to the doctrine of collateral estoppel, defendant was barred from relitigating the issue of plaintiff's right to collect annual assessments (see ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 225 [2011]; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 152-153 [1988]; Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). To the extent that defendant has argued to this court that the determination of the 2007 Supreme Court action was defective, and, thus, not controlling, because an action plaintiff commenced in District Court in 2005 had been fraudulently discontinued and the determination of the Supreme Court in 2008 was premised in part on the allegedly fraudulent discontinuation of the 2005 District Court action, we note that, if defendant believed the stipulation had been fraudulently obtained, her proper remedy was to move in the 2005 District Court action to vacate the stipulation. The District Court in this action, however, was bound by the judicial decision in the prior litigation between plaintiff and defendant, and lacked jurisdiction to entertain challenges to the legitimacy of the stipulation of the discontinuance in the District Court action or of the determination in the Supreme Court action.
We find that the District Court properly rejected defendant's claim that plaintiff lacked standing to sue because it brought this action in the wrong name. We furthermore agree with the court's conclusion that the determination of the 2007 Supreme Court action had collateral estoppel effect in this action, notwithstanding the fact that in the 2007 Supreme Court action plaintiff had sued defendants in the name of "Bay Crest Association, Inc.," and in this action, the amended complaint named plaintiff as "Bay Crest Association." Plaintiff's amendment of the caption, which was made after defendant moved to dismiss but before defendant had served or filed a responsive pleading, was permissible without leave of court (see CPLR 3025 [a]), and was made as of right. Moreover, the amendment, which was made to reflect plaintiff's true name, would have been proper in any event (see London v Altenkirsch, 261 AD2d 589 [1999]; Port Vil. HOA, Inc. v Summit Assoc., 33 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2011]; see also CPLR 2001), especially since defendant failed to demonstrate that she experienced any surprise or prejudice by reason of the amendment (see United Fairness, Inc. v Town of Woodbury, 113 AD3d 754, 755 [2014]; Tilden Dev. Corp. v Nicaj, 49 AD3d 629 [2008]; 86 NY Jur 2d, Process and Papers § 32). Defendant's various affidavits filed in this action amply demonstrate that she was well aware of plaintiff's actual identity throughout this proceeding, and also understood that plaintiff was the same entity against which she had previously litigated her obligation to pay annual assessments. Litigation between "Bay Crest Association, Inc." and defendant has the same precedential effect against defendant as if it had been brought by plaintiff in its actual name of "Bay Crest Association."
We find no merit in defendant's remaining contentions.
Accordingly, the judgment is affirmed.
Marano, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: January 15, 2015