Pomona Country Club, Inc. v. Escoffery

Pomona Country Club, Inc. v Escoffery (2021 NY Slip Op 51022(U)) [*1] Pomona Country Club, Inc. v Escoffery 2021 NY Slip Op 51022(U) [73 Misc 3d 134(A)] Decided on October 21, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2019-952 RO C Pomona Country Club, Inc., Respondent, against Alan Escoffery, Trustee of the Alan Escoffery Revocable Living Trust, or his Successor in Trust, Under Declaration of Trust Dated May 2, 2019, Including Amendments Thereto, Appellant. Alan Escoffery, appellant pro se. Kornfeld, Rew, Newman & Simeone, Esqs. (Scott A. Dow of counsel), for respondent. Appeal from a judgment of the Justice Court of the Village of Wesley Hills, Rockland County (Michael B. Silvermintz, J.), entered March 1, 2019. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $2,930. ORDERED that the judgment, insofar as appealed from, is affirmed, without costs. In this action, plaintiff, an incorporated homeowners' association for a residential community, seeks to recover the principal sum of $2,930, based on the failure of defendant/homeowner Alan Escoffery Revocable Living Trust (Trust) to pay four semiannual assessments and related late fees. Defendant interposed counterclaims. At a nonjury trial, it was established that, in 1996, Alan Escoffery, in his individual capacity, had acquired a residential property (the premises) located on a private road within plaintiff's boundaries, and that, in 2010, plaintiff had sued Escoffery in the Supreme Court, Rockland County, based on Escoffery's failure to pay assessments to plaintiff (the Supreme Court action). Escoffery, who was represented by counsel in the Supreme Court action, challenged plaintiff's authority to charge him assessments on grounds including plaintiff's alleged noncompliance with laws pertaining to homeowners' associations, his nonmembership in plaintiff, the fact that he did not use many of plaintiff's facilities, and an easement in his deed, which, he claimed, entitled him to use plaintiff's private roads without paying assessments to plaintiff. The Supreme Court rejected all of Escoffery's arguments and awarded a judgment in favor of plaintiff upon a finding that Escoffery had had actual and constructive notice that plaintiff was providing facilities and services for the benefit of community residences and that he was thus subject to an implied-in-fact contract which included an obligation to pay for the facilities and services offered (Pomona Country Club, Inc. v Alan Escoffery, Sup Ct, Rockland County, Jan. 26, 2017, Gerald E. Loehr, J., index No. 014495/2010). Escoffery subsequently transferred title to the premises to defendant Trust, of which he is trustee. Escoffery continued to reside in the premises. Plaintiff invoiced the Trust for semiannual assessments and late fees, all of which the Trust failed to pay, and thereafter commenced this action, seeking to recover those sums. Plaintiff argued in the Justice Court that the decision in the Supreme Court action had established the obligation of Escoffery, individually, as the owner of the premises located within plaintiff's boundaries, to pay plaintiff assessments such as those sought herein, and that Escoffery's subsequent transfer of title to the premises to a trust of which he was the trustee, while he continued to reside in the premises, did not alter the property owner's obligation to pay assessments. Escoffery, as trustee, argued that the Trust was exempt from the payment of plaintiff's assessments for the same reasons Escoffery had cited in the Supreme Court action, asserted that the Supreme Court action had been incorrectly decided, and also claimed that plaintiff was not entitled to the payment of assessments because the services it provided were inadequate. Following the trial, the Justice Court dismissed the counterclaims and awarded judgment to plaintiff upon a finding that the Trust had had actual and constructive notice that plaintiff provides amenities including road maintenance and snow plowing, among others, to properties within its borders, and that it would be unfair to permit homeowners to pick and choose among the services for which they pay. As limited by the brief, Escoffery, as trustee, appeals from so much of the judgment entered March 1, 2019 as awarded plaintiff the principal sum of $2,930. "The doctrine of collateral estoppel 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same' " (Jaber v Elayyan, 191 AD3d 964, 966 [2021], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). As the court explained in Bravo v Atlas Capital Group, LLC (196 AD3d 627, 628-629 [2021]): "To establish privity with respect to . . . collateral estoppel, 'the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding' (Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]; see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Although relationship alone is not sufficient to support preclusion, '[privity] includes those who are successors to a property interest, those who control an action although not formal parties to it, [and] those whose interests are represented by a party to the action' (Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970])." The party claiming that collateral estoppel applies in its favor bears the burden of proving that the identical issue was necessarily decided in the prior proceeding and is decisive of the present action (see Bravo v Atlas Capital Group, LLC, 196 AD3d at 629), while the party resisting preclusion bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination (see Fowler v Indymac Bank, FSB, 176 AD3d 682, 684 [2019]). By providing a copy of the judgment and decision in the Supreme Court action to the Justice Court, plaintiff met its burden of demonstrating that the issue that is dispositive of its cause of action in the present matter, to wit, its entitlement to assess semiannual assessments to residents, had necessarily been decided in the Supreme Court action with respect to Escoffery, individually. Defendant failed to demonstrate, and indeed has never argued, that Escoffery had been denied a full and fair opportunity to contest the Supreme Court's determination. Furthermore, since the Trust acquired the premises from Escoffery, who continued to reside in the premises following the transfer of ownership, defendant was in privity with Escoffery for the [*2]purpose of collateral estoppel, both as a successor to a property interest (see Bravo v Atlas Capital Group, LLC, 196 AD3d at 629), which succession occurred after the resolution of the Supreme Court action, so that the Trust was charged with notice that its rights were subject to plaintiff's claims for assessments (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; see also Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), and because of the "unity of interest" between Escoffery and the Trust (see Laramie Springtree Corp. v Equity Residential Props. Trust, 38 AD3d 850, 852 [2007]). We thus conclude that the Justice Court properly awarded judgment to plaintiff. We note that we do not consider those documents annexed to plaintiff's brief which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Accordingly, the judgment, insofar as appealed from, is affirmed. RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 21, 2021