SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
May 26, 2011
SHEILA B. GERSTMAN, APPELLANT,
FOUNTAIN TERRACE OWNERS CORP.,
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered April 23, 2009. The judgment, entered pursuant to an order granting defendant's motion for summary judgment, dismissed the complaint.
Gerstman v Fountain Terrace Owners Corp.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 26, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
ORDERED that the judgment is affirmed, without costs.
In this action to recover $2,400 in legal fees that plaintiff had incurred in a prior summary proceeding which had been commenced against her by defendant and subsequently discontinued without prejudice, the Civil Court granted defendant's opposed motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal was taken. We affirm the judgment.
In support of its motion for summary judgment, defendant established that plaintiff had commenced a prior small claims action in which she had sought the same $2,400 in legal fees arising out of her defense of the aforementioned summary proceeding. The small claims court had dismissed the action, stating that plaintiff was not entitled to legal fees because she had not been a prevailing party in the summary proceeding. Defendant argues that it should be awarded summary judgment in this action on the ground, among others, that the small claims judgment is res judicata on the issue of whether plaintiff is entitled to legal fees incurred in the prior summary proceeding.
The doctrine of res judicata prevents the relitigation of plaintiff's claim (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 ). While plaintiff argues that, pursuant to CCA 1808, a small claims judgment can not have res judicata effect, that provision was actually intended only to divest the small claims judgment of its issue preclusion use, otherwise known as collateral estoppel, a subset of res judicata (see Omara v Polise, 163 Misc 2d 989, 990 [App Term, 2d & 11th Jud Dists 1995]). Where, as here, a plaintiff loses a small claims suit to a defendant, the loss precludes the plaintiff from suing again on the same claim (see Chorekchan v Forman, 18 Misc 3d 127[A], 2007 NY Slip Op 52362[U] [App Term, 2d & 11th Jud Dists 2007]).
Contrary to plaintiff's contention, the amended complaint, which purported to add an additional claim, did not supersede the complaint because the amended complaint was not timely or properly served (see CCA 909 [a]; CPLR 3012 [a]; 2103 [b]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 26, 2011
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