                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     521548
________________________________

FRANK MAKI,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

BASSETT HEALTHCARE et al.,
                    Respondents.
________________________________


Calendar Date:   May 26, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                             __________


     Frank Maki, Walton, appellant pro se.

      Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Shawn F. Brousseau of counsel), for respondents.

                             __________


Clark, J.

      Appeals (1) from an order of the Supreme Court (Becker,
J.), entered July 10, 2015 in Delaware County, which granted
defendants' motion for, among other things, summary judgment
dismissing the complaint, and (2) from an order of said court
(Reynolds Fitzgerald, J.), entered November 16, 2015 in Delaware
County, which, among other things, denied plaintiff's motion to
renew.

      In 2010, plaintiff commenced an action for personal
injuries allegedly sustained as a result of medical treatment
rendered by defendants in 2008 and 2009 following a 2008 motor
vehicle accident. Supreme Court (Peckham, J.) granted
defendants' motion for summary judgment dismissing the complaint.
Upon plaintiff's appeal, this Court affirmed (Maki v Bassett
Healthcare, 85 AD3d 1366 [2011], appeal dismissed 17 NY3d 855
                              -2-                521548

[2011], lv dismissed and denied 18 NY3d 870 [2012]). In 2013,
plaintiff commenced an action in federal court against the same
defendants, their counsel, the State of New York and various
members of the Judiciary involved in the adjudication of the 2010
litigation. The Second Circuit affirmed the District Court's
dismissal of the complaint, and the Supreme Court of the United
States denied certiorari (Maki v New York, 597 Fed Appx 36 [2d
Cir 2015], cert denied ___ US ___, 136 S Ct 362 [2015]).

      In 2015, plaintiff commenced this action, sounding in
breach of contract, simple negligence and fraud, to recover
damages for the injuries that he allegedly sustained as a result
of the same medical treatment rendered by defendants following
the 2008 accident. In lieu of answering, defendants moved for,
among other things, summary judgment dismissing the complaint,
sanctions and an injunction prohibiting plaintiff from commencing
any further actions or proceedings relating to the medical
treatment that was the subject of the 2010 action. Supreme Court
(Becker, J.) granted the motion in its entirety, holding that
plaintiff's claims were barred by the doctrines of res judicata
and collateral estoppel, as well as by the applicable statute of
limitations. The court further determined that plaintiff's
complaint was frivolous, awarded costs and counsel fees to
defendants and enjoined plaintiff from bringing any further
actions or proceedings relating to the medical treatment rendered
by defendants in 2008 and 2009 without prior court approval.
Plaintiff then moved to renew and/or vacate the order granting
summary judgment to defendants, which motion Supreme Court
(Reynolds Fitzgerald, J.) denied. Plaintiff now appeals from
both orders.

      Initially, we note that, because defendants' motion was
made pre-answer, Supreme Court should not have decided it
pursuant to CPLR 3212 without first notifying the parties of its
conversion (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas
Commerce Inc., 283 AD2d 801, 802 [2001]; see also Yule v New York
Chiropractic Coll., 43 AD3d 540, 541 [2007]). Therefore, we
proceed to determine the motion "in accordance with the
requirements of CPLR 3211" (Lockheed Martin Corp. v Aatlas
Commerce, Inc., 283 AD2d at 803), and, in so doing, we "'afford
the pleadings a liberal construction, take the allegations of the
                              -3-                521548

complaint as true and provide plaintiff the benefit of every
possible inference'" (Stainless Broadcasting Co. v Clear Channel
Broadcasting Licenses, L.P., 58 AD3d 1010, 1012 [2009], quoting
EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

      Turning to the merits, "[t]he doctrine of res judicata bars
a party from litigating a claim where a final [disposition] on
the merits has been rendered on the same subject matter, between
the same parties" (Bernstein v State of New York, 129 AD3d 1358,
1359 [2015]; see Matter of Hunter, 4 NY3d 260, 269 [2005]).
Under New York's transactional 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" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981];
accord Matter of Bemis v Town of Crown Point, 121 AD3d 1448,
1450-1451 [2014]). Relatedly, collateral estoppel "proscribes
the relitigation of issues finally and necessarily determined in
a prior [action or] proceeding so long as the parties were
afforded a full and fair opportunity to litigate those issues in
the prior [action or] proceeding" (Matter of Feldman v Planning
Bd. of the Town of Rochester, 99 AD3d 1161, 1163 [2012] [internal
quotation marks, brackets and citation omitted]; see Clark v
Farmers New Century Ins. Co., 117 AD3d 1208, 1209 [2014], lv
dismissed and denied 24 NY3d 991 [2014]).

      The claims asserted in this action stem from the same
series of transactions that gave rise to the 2010 action – i.e.,
the medical treatment provided to plaintiff following the 2008
accident. Indeed, the majority of the facts alleged in the two
complaints are nearly identical, with the only difference being
that the complaint commencing this action alleges continued pain
and suffering, which nonetheless relate "in time, space, origin
[and] motivation" to those adjudicated in the 2010 action (Xiao
Yang Chen v Fischer, 6 NY3d 94, 100 [2005] [internal quotation
marks and citation omitted]; see Smith v Russell Sage Coll., 54
NY2d 185, 192-193 [1981]). Thus, inasmuch as all issues related
to plaintiff's claims sounding in simple negligence and fraud
were fully and finally decided in the 2010 action (Maki v Bassett
Healthcare, 85 AD3d at 1369-1370), they are barred by principles
of res judicata and collateral estoppel (see Kret v Brookdale
                              -4-                521548

Hosp. Med. Ctr., 61 NY2d 861, 863 [1984]; see also Altamore v
Friedman, 193 AD2d 240, 244-245 [1993], lv dismissed 83 NY2d 906
[1994]; compare Vigliotti v North Shore Univ. Hosp., 24 AD3d 752,
754 [2005]). Plaintiff's breach of contract claim, which alleged
that defendants breached their contractual obligation to provide
him with proper medical treatment, "could have been raised in the
prior litigation" and, consequently, is precluded by the doctrine
of res judicata (Matter of Hunter, 4 NY3d at 269; see Rowley,
Forrest, O'Donnell & Beaumont, P.C. v Beechnut Nutrition Corp.,
55 AD3d 982, 984 [2008]; compare Hitchcock v Rourke, 130 AD3d
1111, 1113 [2015]). Accordingly, Supreme Court did not err in
dismissing the complaint.

      We further reject plaintiff's assertion that Supreme Court
improperly awarded costs and counsel fees to defendants. This
action is the third in a series of litigation directed at
defendants for their alleged professional mistreatment of
plaintiff following his 2008 accident. Moreover, the allegations
set forth in the current complaint are nearly identical to those
pleaded in the 2010 action, for which plaintiff was denied direct
and collateral relief by various courts. In view of this,
Supreme Court did not abuse its discretion in awarding defendants
reasonable costs and counsel fees, not to exceed $10,000, that
were incurred in defending this action (see CPLR 8303-a; 22 NYCRR
130-1.1; He v Realty USA, 121 AD3d 1336, 1340-1341 [2014], lv
dismissed and denied 25 NY3d 1018 [2015]; Tsabbar v Auld, 26 AD3d
233, 234 [2006]). For the same reasons, Supreme Court did not
abuse its discretion in prohibiting plaintiff from commencing any
further actions or proceedings against defendants relating to the
medical treatment rendered to him during 2008 and 2009 without
prior leave of court (see Corsini v Morgan, 123 AD3d 525, 527
[2014], lv dismissed 25 NY3d 1084 [2015]; Melnitzky v Apple Bank
for Sav., 19 AD3d 252, 252-253 [2005]).

      Finally, plaintiff did not identify any evidence outside of
the record that would have led to a different result in this case
and, thus, failed to meet his "heavy burden" on his motion to
renew and/or vacate (Matter of Vega v Fischer, 108 AD3d 955, 956
[2013] [internal quotation marks and citation omitted], lv
dismissed 22 NY3d 953 [2013]; see CPLR 2221, 5015; Matter of
Jones v Hickey, 126 AD3d 1247, 1248 [2015], appeal dismissed 26
                              -5-                  521548

NY3d 950 [2015]). Plaintiff's remaining contentions, to the
extent not specifically addressed herein, have been examined and
found to be lacking in merit.

     Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
