Mallilo & Grossman, Flushing, NY (Francesco Pomara, Jr.,
of counsel), for appellant.
Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka
of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J.
MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Queens County (Kerrigan, J.),
dated July 23, 2015, as granted those branches of the motion
of the defendants Rochdale Village, Inc., and "John
Doe" which were pursuant to CPLR 3211(a)(5) and (7) to
dismiss the cause of action alleging negligence in effecting
his arrest insofar as asserted against those defendants.
that the order is affirmed insofar as appealed from, with
2012, the plaintiff commenced an action, inter alia, to
recover damages under theories of assault and battery for
injuries he allegedly sustained while being placed under
arrest by the defendant "John Doe" (hereinafter
Doe), a security officer employed by the defendant Rochdale
Village, Inc. (hereinafter Rochdale), following an
altercation at a meeting of Rochdale's cooperative board.
In 2013, the Supreme Court dismissed the plaintiff's
assault and battery causes of action, as well as a vicarious
liability cause of action asserted against Rochdale based on
the alleged assault and battery, as time-barred by the
one-year statute of limitations applicable to intentional
torts (see CPLR 215). The plaintiff did not
appeal from the dismissal of those causes of action, but
subsequently commenced this action to recover damages for the
alleged "negligent, careless and reckless... manner in
which [Doe] restrained, subdued and arrested plaintiff
causing plaintiff to sustain serious personal injuries."
Thereafter, Rochdale and Doe moved, inter alia, pursuant to
CPLR 3211(a)(5) and (7) to dismiss the cause of action
alleging negligence in effecting his arrest insofar as
asserted against those defendants on the grounds of res
judicata and failure to state a cause of action. In the order
appealed from, the court, inter alia, granted those branches
of the motion.
New York's transactional analysis approach to res
judicata, 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'"
(Matter of Hunter, 4 N.Y.3d 260, 269, quoting
O'Brien v City of Syracuse, 54 N.Y.2d 353, 357;
see Matter of Singer v Windfield, 125 A.D.3d 666,
668; Hae Sheng Wang v Pao-Mei Wang, 96 A.D.3d 1005,
1007; Sosa v JP Morgan Chase Bank, 33 A.D.3d 609).
Here, the purported negligence cause of action asserted in
the plaintiff's second action arose from the same
operative facts as the dismissed intentional tort claims, and
could have been raised in the first action. Accordingly, in
view of the previous litigation between the parties, the
Supreme Court properly directed the dismissal of that cause
of action on the ground that it was barred by the doctrine of
res judicata (see Webb v Greater N.Y. Auto. Dealers
Assn., Inc., 144 A.D.3d 1134; Blake v City of New
York, 144 A.D.3d 1071; Matter of Grossbarth v
Danker, Milstein & Ruffo, P.C., 142 A.D.3d 706;
Gleich v Haenel, 125 A.D.3d 927).
the Supreme Court properly dismissed the negligence cause of
action on the additional ground that the allegations in
support of it failed to state a cause of action. The
allegations that Doe physically injured the plaintiff while
restraining and arresting him did not transform the
plaintiff's time-barred cause of action alleging assault
into a timely cause of action alleging negligence, as New
York does not recognize a cause of action to recover for
negligent assault (see Oteri v Village of Pelham,
100 A.D.3d 725; Smiley v North Gen. Hosp., 59 A.D.3d
179; Wrase v Bosco, 271 A.D.2d 440).
plaintiff's remaining contentions are either improperly
raised for the ...