Plaintiff sues attorney for settling a motor vehicle case for $ 1500. Case runs into trouble for two reasons. First, there has already been a determination that Plaintiff authorized the settlement through his attorney. Second, while Plaintiff says he needs a Turkish translator, he repeatedly answered the questions in English.
The court dismissed all claims in Guliyev v Banilov & Assoc., P.C. 2021 NY Slip Op 31728(U) May 17, 2021 Supreme Court, Kings County Docket Number: 516045/2020 Judge: Peter P. Sweeney.
“Plaintiff’s claims arise from an underlying action captioned Shahin Guliyev v. David Han and Gelco Corp. [Index # 515757/2016] where plaintiff sought damages for injuries allegedly sustained in a motor vehicle accident [MVA]. After the MVA action was settled for the sum of $1500.00, plaintiff changed attorneys and plaintiff’s new counsel moved to vacate the settlement. Han and Gelco Corp. then moved to compel enforcement of the settlement. In opposition to the enforcement motion, plaintiff argued that he had not authorized the settlement. The Court directed that a framed issue hearing be conducted to hear and determine whether Shahln Guliyev’s prior counsel, Harlan Wittenstein, of counsel to Nick Banilov, had the authority to enter into the settlement agreement. Therein, plaintiff claimed there was a language barrier and that the offer had not been properly conveyed to him. The Referee determined that plaintiff was not a credible witness and that his prior counsel had the authority to settle the case. Referee Sunshine stated: “The court notes that throughout the hearing, Guliyev answered the questions in English before they were translated to him in Turkish finding that he understands the English language very well. Furthermore, the court notes that Guliyev had no difficulties speaking English during the court proceedings. In fact, he kept responding in English when questioned, “I don’t know”. “ “He said he did not understand what the Sabrina, the office member stated to him but then testified that she told him that he should come to the office to obtain the $1,500.00 so he clearly understood.”
“Under CPLR 3211[a], a cause of action may be dismissed because of collateral estoppel [issue preclusion] and/or res judicata [claim preclusion]. The proponent of the application of the doctrine of collateral estoppel has the burden of establishing an identity of
issues, and the opponent of the application of the doctrine has the burden of establishing an absence of a full and fair opportunity to litigate (see Klapper v. Cypress Hills Cemetery, 184 AD3d 813; Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349; Schwartz v. Public Adm’r
of County of Bronx, 24 NY2d 65, 71). Here, defendant Banilov submitted a copy of plaintiff’s opposition to the enforcement motion, a copy of the Court’s order determining the enforcement motion, a copy of the Referee’s Report, and the transcript of the framed issue hearing. Banilov’s submissions establish that the question of plaintiff’s consent to the agreement was previously determined. Accordingly, the doctrine of collateral estoppel precludes the plaintiff from relitigating the issue of whether he consented to the settlement (see Karakash v Trakas, 163 AD3d at 789). In opposition, plaintiff failed to show that he lacked the opportunity to litigate the issue in the prior action.
On a motion to dismiss based upon documentary evidence under CPLR §3211[a], dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Walker v. Kramer, 63 AD3d 723 quoting
Klein v Gutman, 12 AD3d 417, 418, 784 NYS2d 581  [citations omitted]; see CPLR 3211[a]). Here, the defendants’ documentary evidence including the prior Court’s decision/order, plaintiff’s opposition to the enforcement motion, the Referee’s report, and the
transcript of the framed issue hearing, conclusively establishes as a matter of law a defense to plaintiff’s claim that he did not consent to the settlement in the underlying action (see CPLR § 3211[a]). “