Aievoli v. Spitale
(Sup. Ct. Kings Cty. 4/28/03)
We represented: Defendant
Joseph J. Dowd, J.
DECISION and ORDER Upon the foregoing papers, defendant moves, by Order to Show Cause, for an order pursuant to CPLR 6512 canceling the notice of pendency for failure to timely serve the summons and complaint within thirty (30) days of filing of the notice of pendency and awarding attorney's fees and costs related to the motion. Defendant separately moves, by Order to Show Cause, for an order pursuant to CPLR 3211 (a) (5), (7) and (8) dismissing the complaint and canceling the notice of pendency on the ground that the action is barred by collateral estoppel, fails to state a cause of action and the court lacks personal jurisdiction over the defendant.
The motions are consolidated for purposes of disposition. Because the relief sought in the second Order to Show Cause essentially duplicates the relief requested in the first Order to Show Cause and enlarges the grounds for dismissal, the applications may be considered as if they had been made as one motion.
Plaintiff commenced the instant action on January 2, 2003, by filing the summons and complaint, to impose a constructive trust upon real property known as 1160 East 5th Street, Brooklyn, New York ("the premises"), and for a declaration that plaintiff is a beneficial owner of the premises together with defendant. The notice of pendency was filed in the Kings County Clerk's Office that same date. The sworn affidavit of service indicates that service upon defendant was made by "nail and mail" service on January 28, 2003 at her residence at 13 Watersedge, Shirley, New York, by affixing the summons and verified complaint to the door of the premises and mailing a copy of the summons and complaint to defendant the next day at the same residence address. Attempts to personally serve the defendant were made on January 25, 2003 at 7:55 a.m.; January 27, 2003 at 8:15 p.m. and lastly on January 28, 2003 at 4:05 p.m. when the process server resorted to "nail and mail" service. The affidavit of service contained the following additional notation: "female behind door who refused service."
Defendant now seeks to have the action dismissed and the notice of pendency canceled claiming that she was not properly served with the summons and complaint. She denies that the summons and complaint were affixed to the door of her residence or that she received such documents by mail and she contends that on the first two attempts at service she was at home and no one rang her bell or knocked on the door. Defendant was uncertain if she was home on the date of the last attempt at service.
Defendant contends further that the action must be dismissed on the ground of collateral estoppel as the issues regarding ownership of the premises were considered in a prior proceeding brought by the defendant's daughter Suzanne Valvo against defendant to impose a constructive trust on the premises (Valvo v. Spitale, Index No. 43595/98). After a non-jury trial, the complaint was dismissed, defendant was awarded possession of the premises and judgment against Ms. Valvo in the sum of $48,608.28 on her counterclaim for use and occupancy. Defendant argues that plaintiff was a principal witness in that proceeding and could have intervened at that time. In any event, defendant avers that plaintiff's interest in the premises, if any, is derivative of the rights of Ms. Valvo and since her claim to impose a constructive trust upon the premises was fully litigated in that proceeding plaintiff herein has no greater right and may not have the issue of constructive trust considered anew.
Plaintiff contends in opposition to the motions to dismiss that the issue of service cannot be determined without a traverse hearing as defendant's contentions raise an issue of fact as to whether service was properly effectuated. Plaintiff contends further that the doctrine of collateral estoppel has no application because he was not in privity with Ms. Valvo whose claim to the premises was determined in the prior action, there is no identity of issue between the prior litigation and the instant action in that plaintiff, unlike Ms. Valvo, derived no benefit from any monies he expended upon the premises and for which he seeks to be compensated in this action, and lastly, he did not have a full and fair opportunity to litigate the issues of constructive trust and unjust enrichment since he was simply a witness in that proceeding.
The equitable doctrine of collateral estoppel, or issue preclusion, is invoked in a subsequent action to preclude a party from relitigating an issue raised in a prior proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see, Buechel v. Bain, 97 NY2d 295, 303; D'Arta v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Ryan v. New York Tel. Co., 62 NY2d 494, 500). Two requirements must be met in order for the doctrine to apply. First, the identical issue must have been decided in the prior action and be decisive of the present action. Second, the party to be precluded must have had a full and fair opportunity to contest the determination now said to be controlling (see, Gilbere v. Barbieri, 53 NY2d 285, 291; Schwartz v. Public Adm'r of County of Bronx, 24 NY2d 65,71).
The initial question for the court's resolution in determining whether plaintiff should be barred on collateral estoppel grounds from litigating the issue of whether a constructive trust may be imposed upon the premises is whether plaintiff, a nonparty to the prior litigation, can be said to be in legal privity with Suzanne Valvo. The courts have observed that in the context of collateral estoppel privity is "an amorphous concept not easy of application" (D'Arta v. New York Cent. Mut. Fire Ins. Co., supra, at 664; Buechel v. Bain, supra, at 304). The Court of Appeals in D'Arta observed that: "Generally, a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation [citations omitted]" (supra).
Here, the court concludes that plaintiff JOSEPH AIEVOLI is in privity with Suzanne Valvo. As the court noted in its decision in the prior litigation, payments made by Mr. AIEVOLI to defendant either toward the purchase of the premises or to renovate the premises were on behalf of Ms. Valvo with whom he had an intimate relationship. Moreover, he testified that he made such contributions so that Ms. Valvo and her children would have a place to live. Whatever rights Mr. AIEVOLI might have had in the premises based upon such contributions would derive from and be coextensive with Ms. Valvo's rights. Thus, Mr. AIEVOLI is bound by the adverse judgment in the prior action pursuant to the doctrine of collateral estoppel.
Turning then to whether the two requirements for applying the doctrine of collateral estoppel have been met, since plaintiff has been found to be in privity with Ms. Valvo, there can be little doubt but that the full and fair opportunity requirement has been met and that there is an identity of issues between this action and the prior proceeding. Mr. AIEVOLI was fully aware of the prior litigation and of the issues raised therein given his close personal relationship with Ms. Valvo and his status as a witness at the bench trial. He appears to have made a considered determination not to intervene in those proceedings, but rather to wait to see whether Ms. Valvo obtained a favorable judgment. Plaintiff should not be permitted to now raise and relitigate the facts and issues determined in the prior proceeding simply because Ms. Valvo was unsuccessful in obtaining a judgment in her favor in the prior litigation. Plaintiff was united in interest with Ms. Valvo as to the particular issues raised with respect to rights in the premises and must be bound by the determination against the individual with whom he stands in privity.
In light of this determination, the court need not address the personal jurisdiction issue.
Defendant's motion for an order pursuant to CPLR 3211 (a) (5) dismissing the action as barred by the doctrine of collateral estoppel is granted, the action is dismissed and the Clerk is directed to enter judgment accordingly. Defendant's motion to cancel the Notice of Pendency is also granted and the Notice of Pendency filed in the Kings County Clerk's Office at liber 1634, page 293, on January 2, 2003, is hereby canceled. The Clerk is directed to make the appropriate entries in the record. A copy of this order with notice of entry shall be served upon the Clerk and the parties within thirty (30) days of entry.
The foregoing shall constitute the decision and order of the court.