RICHARD P. RACKOWSKI, Appellant,
ABIY ARAYA et al., Defendants.
Calendar Date: June 7, 2017
Richard P. Rackowski, Amsterdam, appellant pro se.
Before: Peters, P.J., Rose, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the County Court of Fulton County (Hoye,
J.), entered March 17, 2015, which affirmed a judgment of the
City Court of the City of Gloversville in favor of
2005, defendants commenced an action pursuant to RPAPL
article 15 to extinguish the right-of-way of plaintiff and
one of his family members over Bertrand Road Extended in the
Town of Mayfield, Fulton County. Plaintiff answered and
stated a counterclaim alleging that defendants had interfered
with his family's use of the right-of-way. After
defendants failed to pursue the action, Supreme Court
(Aulisi, J.) dismissed the complaint and granted
plaintiff's counterclaim, determining that
plaintiff's family has a right-of-way over Bertrand Road
Extended and permanently enjoining defendants from
interfering with that right-of-way.
plaintiff commenced this small claims action against
defendants, asserting causes of action for negligent
infliction of emotional distress and malicious prosecution.
Prior to trial, defendants moved to dismiss the complaint and
City Court granted the motion, finding that plaintiff's
causes of action were barred by the doctrine of res judicata.
On plaintiff's appeal, County Court agreed that the
doctrine of res judicata barred his causes of action and also
found, on the merits, that plaintiff failed to establish his
claim for malicious prosecution. Accordingly, County Court
affirmed City Court's judgment, and this appeal ensued.
doctrine of res judicata provides that "'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 Josey v
Goord, 9 N.Y.3d 386, 389-390 , quoting
O'Brien v City of Syracuse, 54 N.Y.2d 353, 357
; accord Maki v Bassett Healthcare, 141 A.D.3d
979, 981 , appeal dismissed and lv denied 28
N.Y.3d 1130 ). Nevertheless, the permissive
counterclaim rule operates to "save from the bar of res
judicata those claims for separate or different relief that
could have been but were not interposed in the parties'
prior action" so long as the second action is not based
on "a preexisting claim for relief that would impair the
rights or interests established in the first action"
(Henry Modell & Co. v Minister, Elders & Deacons
of Ref. Prot. Dutch Church of City of N.Y., 68 N.Y.2d
456, 462 n 2 ; see Paramount Pictures Corp. v
Allianz Risk Transfer AG, 141 A.D.3d 464, 467 ,
lv granted 28 N.Y.3d 909');">28 N.Y.3d 909 ; 67-25 Dartmouth
St. Corp. v Syllman, 29 A.D.3d 888, 889-890 ).
review of the record establishes that, although some of
plaintiff's allegations relate to events that predate the
first action and are connected to defendants' attempts in
the first action to assert their rights as property owners,
the monetary relief that plaintiff now seeks is different
than the relief he obtained in the first action and would in
no way impair the rights established by the first action.
Thus, we find that County Court's conclusion that the
doctrine of res judicata bars plaintiff from raising his
negligent infliction of emotional distress and malicious
prosecution claims in this action was clearly erroneous
(see Classic Autos. v Oxford Resources Corp., 204
A.D.2d 209, 209 ; compare 67-25 Dartmouth St. Corp.
v Syllman, 29 A.D.3d at 890). Accordingly, we conclude
that "substantial justice was not meted out according to
the substantive law" as to these claims (Valley
Psychological, P.C. v Liberty Mut. Ins. Co., 30 A.D.3d
718, 719 ; see UCCA 1807; Pugliatti v
Riccio, 130 A.D.3d 1420, 1421 ). 
find that County Court erred in addressing the merits of
defendants' pretrial motion to dismiss as it related to
the malicious prosecution claim inasmuch as informal and
simplified procedures govern small claims actions
(see UCCA 1804), and pretrial motions to dismiss
should rarely be entertained (cf. Sarver v Pace
Univ., 5 Misc.3d 70, 71 [App Term, 1st Dept 2004];
Friedman v Seward Park Hous. Corp., 167 Misc.2d 57,
58 [App Term, 1st Dept 1995]). In light of the fact that
plaintiff, who appears pro se, has not yet had the
opportunity to present his evidence at a hearing, we find
that substantial justice will best be served by remittal to
City Court for a prompt trial (see Williams v
Friedman Mgt. Corp., 11 Misc.3d 139');">11 Misc.3d 139 [A], 2006 NY Slip Op
50579[U], *1 [App Term, 1st Dept 2006]).
Peters, P.J., Mulvey, Aarons and Pritzker, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as granted defendants' motion
to dismiss the negligent infliction of emotional distress and
malicious prosecution causes of action; motion denied to said
extent and matter remitted to the City Court of the City of
Gloversville for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.