Opinion
No. SC–0695–14.
01-28-2015
Jillian FORTUNE, Plaintiff, v. Kenneth MARSHALL, Defendant.
Opinion
The Defendant, Kenneth Marshall, by his attorney, Christopher C. Shambo, Esq., having moved this Court for an Order dismissing the Plaintiff's small claims complaint on the grounds of collateral estoppel, res judicata, and lack of subject matter of this court; and upon reading and filing the affirmation, dated January 19, 2015, of Christopher C. Shambo, Esq., in support of the motion, together with all exhibits annexed thereto, the Court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
On or about September 1, 2011, the Warren County Family Court entered an Order on Consent in File No. 8174, Docket # F–01063–11, in the matter entitled, Cindi Lou Marshall v. Jillian Mae Coon, directing the Plaintiff herein, Jillian Fortune, f/k/a, Jillian Mae Coon, to pay child support to her mother, Cindi Lou Marshall, for the support of Kennadi April Gardenhire, an infant, in the amount of $35.00 weekly, together with $310.00 in retroactive support, payable through the Warren County Support Collection Unit [Exhibit C].
On or about August 2, 2013, the Plaintiff's mother, Cindi Lou Marshall, died [Exhibit D].
On or about August 31, 2014, the Plaintiff filed a Petition with the Warren County Family Court seeking a modification of the September 1, 2011 Order of Support. The Plaintiff also filed an application with the Warren County Family Court, naming Cindi L. Marshall, and seeking that the prior support orders be vacated (apparently on the basis that Ms. Marshall had passed away and the child was now residing with the Plaintiff, Jillian Fortune. The Family Court granted the Plaintiff's petition and vacated the Order of Support [Shambo Affirmation ¶ 6].
The August 31, 2014 Petition for modification of child support was filed against Defendant Kenneth P. Marshall and Cindi L. Marshall (Deceased) [Exhibit A]. The Defendant, Kenneth Marshall, had never been a party of any order of support for the infant child, Kennadi April Gardenhire [Shambo Affirmation ¶ 7]. Apparently, Defendant Kenneth Marshall is the step-grandfather of Kennadi April Gardenhire [Exhibit A, Petition ¶ 1].
The Plaintiff's Petition for Modification of the September 1, 2011 Order of Support sought child support against Defendant Kenneth P. Marshall and alleged, “I want to be reimbersed [sic] the $635.00 for child support he received when the child resided with me.” [Exhibit A, Petition ¶ 7].
On or about October 1, 2014, the Warren County Family Court filed an Order of Dismissal of the Plaintiff's Petition for modification for the September 1, 2014 Order of Support, stating that “... the petition is dismissed due to the failure to state cause of action as beyond the subject matter jurisdiction of Family Court.” [Exhibit B].
October 28, 2014, the Plaintiff, Jillian Fortune, filed a small claims summons and complaint with this Court seeking a money judgment as against the Defendant, Kenneth Marshall, in the amount of $1387.50, on the alleged grounds that:
“Kenneth Marshall owes this amount in illegally obtained child support that was taken out of my paycheck after my mother passed away [on] 8/2/13. Her name was on the court order and his was not.”
The Defendant asserts that the Plaintiff's small claim complaint must be dismissed on the grounds that the October 1, 2014 Order of Dismissal of the Warren County Family Court constitutes collateral estoppel and res judicata. The Defendant further asserts that this Court lacks subject matter jurisdiction over child support.
CONCLUSIONS OF LAW
A.MOTION TO DISMISS FOR COLLATERAL ESTOPPEL AND RES JUDICATA
The party seeking to invoke the doctrine of collateral estoppel or res judicata bears the burden of proving the elements of the defense. Leung v. Suffolk Plate Glass Co., Inc., 78 AD3d 663, 663–664, 911 N.Y.S.2d 376 [2d Dept.2010] ; Mahler v. Campagna, 60 AD3d 1009, 1011, 876 N.Y.S.2d 143 (2d Dept.2009).
“The doctrine of res judicata holds that a final judgment bars further actions between the same parties on either the same cause of action or any claim related to the same course of conduct, unless the requisite elements and proof required for the new claim vary materially from those of the claim in the prior action.” Ginerzra Assoc. LLC v. Ifantopoulos, 70 AD3d 427, 429 (1st Dept .2010). Thus, “under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof.” Shelley v. Silvestre, 66 AD3d 992, 993, 887 N.Y.S.2d 662, quoting, Matter of City of New York v. Schmitt, 50 AD3d 1032, 1033, 857 N.Y.S.2d 191. See also: Matter of Reilly v. Reid, 45 N.Y.2d 24, 30, 407 N.Y.S.2d 645, 379 N.E.2d 172.
With respect to the doctrine of collateral estoppel, the party seeking to invoke the doctrine must prove that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from re-litigating the issue had a full and fair opportunity to contest the prior issue. Leung v. Suffolk Plate Glass Co., Inc., 78 AD3d 663, 663–664.
“As a general rule the res judicata doctrine—collateral estoppel included for this purpose requires a final judgment on the merits. It has been said, therefore, that a verdict or decision not reduced to judgment will not do.” Siegel, N.Y. Practice § 444 [5th ed.2013] ; see Carmody—Wait 2d § 63:480 ; see also Egbert Sq. Realty, LLC v. 112–114 Corp., 93 AD3d 687 [2012] ; Jespersen v. Li Sheng Liang, 68 AD3d 724 [2009] ; Berkshire Nursing Ctr. v. Len Realty Co., 168 A.D.2d 475 [1990] ; Mandracchia v. Russo, 53 Misc.2d 1018 (App Term, 2d Dept 1967).
In the present case, the October 1, 2014 Order of Dismissal of the Warren County Family Court was not a final judgment made on the merits. As a result, it has no collateral estoppel or res judicata effect on the present proceedings in this court. In addition, the actual determination in the October 1, 2014 Order of Dismissal (i.e.; that the Family Court lacked subject matter jurisdiction over the Plaintiff's claim for reimbursement of wrongfully obtained child support funds) has no preclusive effect on the small claim in the present case.
B.CLAIM OF LACK OF SUBJECT MATTER JURISDICTION
The Uniform City Court Act (UCCA) § 1801 provides that a small claim may be brought for any cause of action for money not to exceed five thousand dollars ($5000) provided that the defendant either resides, or has an office for the transaction of business or a regular employment within the county. U.C.C.A. § 1801. See also; Figueroa v. Rivera, 21 Misc.3d 835, 865 N.Y.S.2d 823 (N.Y. City Ct .,2008). The goal of Small Claims courts is to provide a simplified and expeditious manner for claims to be heard “without the burden of being bound by statutory rules of practice, procedure, pleading and evidence.”Figueroa, supra, quoting, Celona v. Celona, N.Y .L.J., p. 36, col. 2 (March 25, 1994); citing, MacCollam v. Arlington, 94 Misc.2d 692, 405 N.Y.S.2d 204 (1978) ; Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc.2d 339, 533 N.Y .S.2d 372 (1988) ; Harding v. N.Y. State Teamsters Council, 60.A.D.2d 975, 401 N.Y.S.2d 634 (1978), appeal dismissed, 44 N.Y.2d 641, 405 N.Y.S.2d 1025, 376 N.E.2d 934 (1978).
Section 411 of the Family Court Act provides that the family court retains exclusive jurisdiction over proceedings for support or maintenance. F.C.A. § 411. Thus, jurisdiction for matrimonial actions, including enforcement or modification of a separation agreement or child support order is in Supreme Court or Family Court. F.C.A. § 411, et seq. ; Barone v. Stern, N.Y.L.J., p. 30, col. 5 (Jan. 8, 1999).
However, civil courts and small claims courts are not precluded from hearing disputes merely because the issue arose out of a matrimonial or child support dispute. See: Barone, supra.; 18B Carmody–Wait 2d § 117:199 (the civil court and small claims court are not necessarily precluded from hearing claims arising out of matrimonial issues where the jurisdictional requirements of that court are otherwise met); Jewett v. Jewett, 79 Misc.2d 76, 359 N .Y.S.2d 441 N.Y.Co.Ct.1974 (the plaintiff wife sued in the small claims division of the city court for support payments due under the separation agreement, city court dismissed for lack of subject matter jurisdiction, county court reversed dismissal and returned for a hearing); Werber v. Werber, 47 Misc.2d 399, 262 N.Y.S.2d 679 (N.Y. City Civ.Ct.1965) (holding that the civil court of City of New York had jurisdiction of wife's action against husband to recover child support as provided in separation agreement).
In the present case, the Plaintiff's small claims complaint does not seek to enforce or modify a child support order or agreement. In fact, the Defendant's motion concedes that the Mr. Marshall has never been the party to any child support order. [Shambo Affirmation, ¶ 7]. Instead, the Plaintiff's complaint seeks reimbursement of moneys that were withdrawn from her bank account and were allegedly paid to Cindi Marshall, after her death. Plaintiff claims that the Defendant illegally or wrongfully obtained and kept the Plaintiff's funds, even though the Defendant was not entitled to the support funds. As a result, the Plaintiff's complaint seeks a money judgment based on a claim of conversion. As the defendant resides in the City of Glens Falls, the Court has personal jurisdiction over the parties.
Based on the foregoing, the Defendant's motion to dismiss is DENIED.