MURTAUGH, GAIL v. NEW YORK STATE DEPARTMENT OF ENVIRO ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1125
    CA 14-02061
    PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.
    IN THE MATTER OF GAIL MURTAUGH, INDIVIDUALLY
    AND DOING BUSINESS AS CROSBY HILL AUTO RECYCLING,
    RICHARD R. MURTAUGH AND MURTAUGH
    RECYCLING CORP., PETITIONERS-APPELLANTS,
    V                               MEMORANDUM AND ORDER
    NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
    CONSERVATION AND DENISE M. SHEEHAN, COMMISSIONER,
    RESPONDENTS-RESPONDENTS.
    (APPEAL NO. 2.)
    BRICKWEDDE LAW FIRM, SYRACUSE (KEVIN C. MURPHY OF COUNSEL), FOR
    PETITIONERS-APPELLANTS.
    ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
    COUNSEL), FOR RESPONDENTS-RESPONDENTS.
    Appeal from an order of the Supreme Court, Onondaga County
    (Deborah H. Karalunas, J.), entered October 17, 2014 in a proceeding
    pursuant to CPLR article 78. The order, among other things, granted
    petitioners’ motion to reargue their cross motion to dismiss, and upon
    reargument, denied the cross motion to dismiss the counterclaims.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: This appeal arises from a CPLR article 78 proceeding
    seeking various forms of relief, including the reversal of a summary
    abatement order (SAO) issued by respondent Denise M. Sheehan,
    Commissioner of respondent New York State Department of Environmental
    Conservation (DEC). Respondents answered and raised, inter alia, a
    series of counterclaims. Petitioners submitted a reply in which they
    raised the issue of jurisdiction over the counterclaims by contending
    that the Attorney General (AG) had not filed a summons or complaint to
    commence an action in which those claims could be raised, and that the
    AG was not a party to this proceeding and thus could not raise those
    claims as counterclaims herein. Respondents moved in 2006 to dismiss
    several causes of action and for summary judgment on the
    counterclaims, and petitioners, in effect, cross-moved to strike parts
    of the counterclaims. The court granted respondents’ motion in part,
    dismissed the first three causes of action, and transferred to this
    Court the issue of whether the DEC’s resolution of the SAO was
    supported by substantial evidence. The court further concluded that
    -2-                          1125
    CA 14-02061
    “[n]o jurisdictional or statute of limitation issue [was] present.”
    Petitioners appealed from that judgment without challenging the
    propriety of the counterclaims or the court’s jurisdiction to
    entertain them. This Court affirmed the judgment, confirmed the DEC’s
    determination, and dismissed the petition in its entirety (Matter of
    Murtaugh v New York State Dept. of Envtl. Conservation, 42 AD3d 986,
    lv dismissed 9 NY3d 971).
    Respondents thereafter moved to consolidate this proceeding with
    other litigation, and petitioners again sought to dismiss the
    counterclaims on the ground that the court lacked jurisdiction over
    the counterclaims because the AG, as the person entitled to raise
    them, was not a party to this proceeding and thus was required to
    raise them in a separate proceeding. Petitioners appeal from an order
    that, upon reargument, adhered to the court’s prior decision that,
    inter alia, denied the cross motion on res judicata grounds. We
    affirm. Petitioners’ contentions regarding the imposition of
    counterclaims by the DEC “were previously raised . . . or could have
    been raised on a prior appeal in this matter . . . Therefore,
    reconsideration of these [contentions] is barred by the doctrine of
    the law of the case” (Juhasz v Juhasz, 101 AD3d 1690, 1690 [internal
    quotation marks omitted]), which “has been aptly characterized as ‘a
    kind of intra-action res judicata’ ” (People v Evans, 94 NY2d 499,
    502, rearg denied 96 NY2d 755, quoting Siegel, New York Practice §
    448, at 723 [3d ed]). “The law of the case doctrine generally
    precludes relitigating an issue decided in an ongoing action where
    there previously was a full and fair opportunity to address the issue”
    (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d
    1177, 1179), and petitioners had such an opportunity here.
    Entered:   December 23, 2015                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 14-02061

Filed Date: 12/23/2015

Precedential Status: Precedential

Modified Date: 10/7/2016