Opinion
2017–12533 Index 601313/17
11-28-2018
Brianne MOONEY, Appellant, v. MANHATTAN OCCUPATIONAL, PHYSICAL AND SPEECH THERAPIES, PLLC, Respondent.
Hirsch, Britt & Mose´, East Meadow, N.Y. (Edgar A. Hirsch III of counsel), for appellant. Rivkin Radler LLP, New York, N.Y. (Cheryl F. Korman, Jeremy B. Honig, and Henry Mascia, Uniondale, of counsel), for respondent.
Hirsch, Britt & Mose´, East Meadow, N.Y. (Edgar A. Hirsch III of counsel), for appellant.
Rivkin Radler LLP, New York, N.Y. (Cheryl F. Korman, Jeremy B. Honig, and Henry Mascia, Uniondale, of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for unlawful termination of employment in violation of Labor Law § 740, the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered October 6, 2017. The order granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata, and denied the plaintiff's cross motion to vacate or modify a stipulation of discontinuance.
ORDERED that the order is affirmed, with costs.
After the plaintiff was terminated from her employment with the defendant, Manhattan Occupational, Physical and Speech Therapies, PLLC (hereinafter MOPST), she commenced an action (hereinafter the first action) seeking to recover damages against MOPST and Happy Hour 4 Kids (hereinafter Happy). The plaintiff alleged that MOPST and Happy retaliated against her in violation of Social Services Law § 413 by terminating her employment after she reported a case of suspected child abuse. After MOPST and Happy moved to dismiss the complaint in the first action, the plaintiff's counsel sent defense counsel a stipulation of discontinuance dated January 9, 2017, signed by the plaintiff's counsel, agreeing to discontinue the first action with prejudice. Defense counsel signed the stipulation and filed it with the Supreme Court.
Subsequently, the plaintiff commenced this action against MOPST to recover damages for unlawful termination of employment in violation of Labor Law § 740(3), alleging the same facts as she had alleged in the first action. MOPST moved to dismiss the complaint in the second action pursuant to CPLR 3211(a)(1) and (5), contending, among other things, that the complaint was barred by the doctrine of res judicata. The plaintiff cross-moved to vacate or modify the stipulation of discontinuance with prejudice as to MOPST. The Supreme Court granted that branch of MOPST's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata, finding that the issues raised in this action are the same issues that were raised in the first action. In addition, the court denied the plaintiff's cross motion to vacate or modify the stipulation of discontinuance. The plaintiff appeals.
Contrary to the plaintiff's contention, the Supreme Court did not err in finding that this action was barred by the doctrine of res judicata. "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action" ( Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; see Pawling Lake Prop. Owners Assn., Inc. v. Greiner, 72 A.D.3d 665, 668, 897 N.Y.S.2d 729 ). Under "the transactional analysis approach in deciding res judicata issues ... once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ( O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d at 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; Bayer v. City of New York, 115 A.D.3d 897, 899, 983 N.Y.S.2d 61 ; Sandhu v. Mercy Med. Ctr., 54 A.D.3d 928, 928, 864 N.Y.S.2d 124 ). The doctrine bars litigation of " ‘matters that could or should have been raised in a prior proceeding between the parties arising from the same factual grouping, transaction, or series of transactions’ " ( Vigliotti v. N. Shore Univ. Hosp., 24 A.D.3d 752, 754, 810 N.Y.S.2d 82, quoting DeSanto Constr. Corp. v. Royal Ins. Co. of Am., 278 A.D.2d 357, 358, 717 N.Y.S.2d 636 ; cf. Silberstein, Awad & Miklos, P.C. v. Spencer, Maston & McCarthy, LLP, 43 A.D.3d 902, 903, 841 N.Y.S.2d 623 ).
Here, in both the first action and this action, the plaintiff alleged that MOPST terminated her employment in retaliation for her reporting a case of suspected child abuse. The only change in her cause of action is the statute under which she seeks to recover. As such, the cause of action in this action arises out of the same set of operative facts as the cause of action in the first action, and it could have been raised in that prior action (see Johnson v. City of New York, 148 A.D.3d 1126, 1127, 50 N.Y.S.3d 461 ; Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 144 A.D.3d 1134, 1135, 42 N.Y.S.3d 324 ). Moreover, " ‘[a] stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata’ " ( Cora v. Ranjan, 98 A.D.3d 598, 599, 949 N.Y.S.2d 503, quoting Liberty Assoc. v. Etkin, 69 A.D.3d 681, 683, 893 N.Y.S.2d 564 ; see Matter of Chiantella v. Vishnick, 84 A.D.3d 797, 798, 922 N.Y.S.2d 525 ). Here, the plaintiff's counsel prepared and executed the stipulation of discontinuance with prejudice in the first action, without reserving any rights or limiting the causes of action disposed of. Although the language "with prejudice" may be "narrowly interpreted when the interests of justice, or the particular equities involved, warrant such an approach" ( Dolitsky's Dry Cleaners v. Y L Jericho Dry Cleaners, 203 A.D.2d 322, 323, 610 N.Y.S.2d 302 [internal quotation marks omitted]; see Pawling Lake Prop. Owners Assn., Inc. v. Greiner, 72 A.D.3d at 667, 897 N.Y.S.2d 729 ; Mosello v. First Union Bank, 258 A.D.2d 631, 632, 685 N.Y.S.2d 757 ), this case does not warrant such an approach.
Since the stipulation of discontinuance is unambiguous, its interpretation "is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument" ( Forte v. Kaneka Am. Corp., 110 A.D.2d 81, 85, 493 N.Y.S.2d 180, quoting Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029 ).
Moreover, the plaintiff was not entitled to vacate or modify the stipulation of discontinuance upon the ground of mistake. "Stipulations of settlement are judicially favored, will not lightly be set aside, and ‘are to be enforced with rigor and without a searching examination into their substance’ as long as they are ‘clear, final and the product of mutual accord’ " ( Peralta v. All Weather Tire Sales & Serv., Inc., 58 A.D.3d 822, 822, 873 N.Y.S.2d 111, quoting Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738, 819 N.E.2d 206 ; see Forcelli v. Gelco Corp., 109 A.D.3d 244, 247–248, 972 N.Y.S.2d 570 ). " ‘Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation’ " ( Bethea v. Thousand, 127 A.D.3d 798, 799, 6 N.Y.S.3d 584, quoting Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; see Scuorzo v. Safdar, 115 A.D.3d 843, 843, 982 N.Y.S.2d 372 ). " ‘A party seeking reformation of a contract by reason of a mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation’ " ( Moshe v. Town of Ramapo, 54 A.D.3d 1030, 1031, 864 N.Y.S.2d 569, quoting Yu Han Young v. Chiu, 49 A.D.3d 535, 536, 853 N.Y.S.2d 575 ; see Yakobowicz v. Yakobowicz, 142 A.D.3d 996, 998, 37 N.Y.S.3d 560 ; Lieberman v. Greens at Half Hollow, LLC, 54 A.D.3d 908, 909, 864 N.Y.S.2d 539 ).
Here, contrary to the plaintiff's contentions, she failed to establish by clear and convincing evidence that the stipulation was executed under a mutual mistake or a unilateral mistake induced by a fraudulent misrepresentation by MOPST's counsel (see Matter of Sheng v. State of N.Y. Div. of Human Rights, 93 A.D.3d 851, 852, 941 N.Y.S.2d 215 ; Moshe v. Town of Ramapo, 54 A.D.3d at 1031, 864 N.Y.S.2d 569 ). The plaintiff provided no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform the plaintiff's counsel that the stipulation was not limited and/or did not reserve her rights. Even if opposing counsel was aware of the mistake, he owed no duty to disclose it to his adversary (see Matter of Sheng v. State of N.Y. Div. of Human Rights, 93 A.D.3d at 852, 941 N.Y.S.2d 215 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of MOPST's motion which was to dismiss the complaint as barred by the doctrine of res judicata, and deny the plaintiff's cross motion.
CHAMBERS, J.P., SGROI, BARROS and IANNACCI, JJ., concur.