Matter of B.Z. Chiropractic, P.C. v. Allstate Ins. Co.Matter of B.Z. Chiropractic, P.C. v. Allstate Ins. Co.
MARK C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.
2019-04454 2019-04456 (Index No. 719878/18)
In the Matter of B.Z. Chiropractic, P.C., respondent, v Allstate Insurance Company, appellant.
APPEALS by Allstate Insurance Company, in a hybrid proceeding pursuant to
Amos Weinberg (Lynn Gartner Dunne, LLP, Mineola, NY [Kenneth L. Gartner] of counsel), for respondent.
DILLON, J.
OPINION & ORDER
This action invites us to address whether an advisory opinion or dicta in an order by a court qualifies under res judicata, collateral estoppel, or the law of the case doctrines to preclude a court in a later proceeding from considering the same issue. We hold that a court‘s dicta is not subject to the preclusive effect of the doctrines of res judicata, collateral estoppel, or law of the case.
I. Relevant Facts
The underlying facts of this matter exhibit the signs of age and follow a somewhat unusual path, but are not particularly complex.
In 2000, B.Z. Chiropractic, P.C. (hereinafter BZ), commenced an action in the Civil Court, Queens County, against Allstate
BZ did not seek to enforce the 2001 judgment until 2015. In 2015, counsel for BZ sent Allstate a letter demanding $229,981.66, reflecting the amount of the 2001 judgment plus compound postjudgment interest computed at 2% per month. Thereafter, Allstate paid BZ $8,842.49, and moved in the Civil Court for an order, inter alia, tolling the accrual of all postjudgment interest. The court, in an order dated November 16, 2015, held that BZ unreasonably allowed the accrual of compound interest for almost 15 years and that interest should not accrue for the period of November 1, 2005, through June 19, 2015. The result of the court‘s order was to leave BZ entitled to only the amount of the original judgment plus interest accruing before and after the judicially-imposed tolling period.
With the interest that accrued before November 1, 2005, and after June 19, 2015, Allstate paid, inclusive of the original judgment, $22,999.70. Allstate then filed another motion in the Civil Court seeking, among other things, to compel BZ to file a satisfaction of judgment for the amount that was due and that Allstate had paid. In an order entered July 7, 2016, the court, among other things, directed the clerk to enter a satisfaction of judgment for the stated sum (see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U] [App Term, 2d Dept, 11th & 13th Jud Dists]).
BZ appealed both of the Civil Court orders to the Appellate Term for the 2nd, 11th, and 13th Judicial Districts. The only issues on appeal before the Appellate Term were whether interest should have been judicially tolled between November 1, 2005, and June 19, 2015, and whether a satisfaction of judgment should have been entered, as those were the issues that had been decided by the Civil Court in the orders appealed from. Apparently not placed before the Civil Court or the Appellate Term was any issue about the rate at which any such interest should be calculated, though in its submission, BZ incidentally mentioned that the rate was 2% per month as mandated by
Thereafter, BZ moved in the Appellate Term for a clarification of its August 18, 2017 decision and order insofar as the interest rate language was concerned, and for leave to appeal to this Court. By decision and order on motion dated December 14, 2017, the Appellate Term granted BZ‘s motion to the extent of clarifying that “it was this court‘s intention to note that interest be awarded at the rate of nine percent per year as set forth in
BZ, perhaps frustrated that it was denied an appellate remedy on the issue of the proper rate of interest on the judgment, filed a separate motion with this Court, for leave to appeal the Appellate Term‘s orders. By decision and order on motion dated March 2, 2018, this Court denied BZ‘s motion for leave to appeal. While this Court did not explain its reason for denying leave to appeal, it would make sense for our Court to have denied leave because “advisory opinions” outside the scope of the litigated issues are not appealable
By notice of petition dated May 18, 2018 (hereinafter the First Petition), BZ commenced a hybrid turnover proceeding pursuant to
Thereafter, BZ commenced the instant hybrid turnover proceeding pursuant to
By order entered March 8, 2019, the Supreme Court denied that branch of BZ‘s petition/complaint which was to turn over monies in Allstate‘s bank account because the bank was not a party as required by
Allstate moved for leave to renew and reargue its cross petition. In support of that branch of its motion which was for leave to renew, Allstate contended that BZ had sought the same relief in the First Petition, which had been dismissed for improper service of process. Allstate argued, in support of that branch of its motion which was for leave to reargue, that BZ‘s proceeding/action was barred by res judicata, collateral estoppel, and, for the first time during the various litigations, the doctrine of law of the case.
In an order entered April 22, 2019, the Supreme Court denied that branch of Allstate‘s motion which was for leave to renew. It determined that Allstate‘s stated basis for that branch of its motion, regarding the earlier procedural dismissal, did not involve new evidence or a change in the law, citing Delvecchio v Bayside Chrysler Plymouth Jeep Eagle (271 AD2d 636). The court likewise denied the separate branch of the motion that sought leave to reargue, on the ground that the court had not earlier misapprehended relevant facts or misapplied controlling principles of law.
Allstate now appeals from so much of the March 8, 2019 order as granted that branch of the petition/complaint which was for a judgment declaring that the 2001 judgment accrued postjudgment interest at the rate of 2% per month compounded and as denied its cross petition. Allstate also appeals from the April 22, 2019 order.
II. Legal Analysis
We affirm the order entered March 8, 2019, insofar as appealed from, and the order entered April 22, 2019, insofar as reviewed.
A. The Supreme Court Properly Determined BZ‘s Prayer for a Declaratory Judgment
Allstate argues on appeal that BZ‘s commencement of a declaratory judgment action in the Supreme Court was merely a guise to make an end run around the Appellate Term determinations in the Civil Court action. As discussed below, since the Supreme Court had the authority to entertain the issue of postjudgment interest in an action for a declaratory judgment, and since the Appellate Term‘s discussion of the applicable
BZ‘s petition/complaint was a hybrid turnover proceeding (see
Doing so, however, did not require dismissal of the declaratory judgment portion of the hybrid action/proceeding, as the litigation and adjudication of such hybrid matters is not uncommon (see e.g. Matter of East W. Bank v L & L Assoc. Holding Corp., 144 AD3d 1030, 1032; Shipman v City of N.Y. Support Collection Unit, 183 Misc 2d 478, 483 [Sup Ct, Bronx County]). In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act, but merely declares the prevailing party‘s rights with respect to the matter in controversy for the purpose of guiding future conduct, and then, as once colloquially described by Professor David Siegel, “let[s] things go at that” (Siegel & Connors, NY Prac § 436 [6th ed Dec. 2020 Update]; see
Moreover,
B. Determining the Rate of Interest De Novo Was Not Precluded by the Doctrines of Res Judicata, Collateral Estoppel, or Law of the Case
Allstate failed to establish that the declaratory relief BZ sought as to the applicable rate of interest was barred by the doctrines of res judicata, collateral estoppel, or law of the case.
Res judicata gives binding effect to the judgment of a court of competent jurisdiction and prеvents the parties to an action, and those in privity with them, from subsequently re-litigating any questions that were already decided (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13; Matter of Grainger [Shea Enters.], 309 NY 605, 616). The doctrine requires that there be a judgment on the merits from a prior action between the same parties involving the same subject matter (see Matter of Josey v Goord, 9 NY3d 386, 389; Matter of Hunter, 4 NY3d 260, 270; see also Puryear v Hutchinson, 175 AD3d 521, 522).
The related doctrine of collateral estoppel, which is narrower, precludes a party from relitigating a particular issue where the identical issue has already been decided in the prior action, is decisive in the present action, and where the party to be precluded had a full and fair opportunity to contest the issue in the prior proceeding (see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72; Buechel v Bain, 97 NY2d 295, 303-304; Ryan v New York Tel. Co., 62 NY2d 494, 500; Mahler v Campagna, 60 AD3d 1009, 1011; Sherman v DeRosa, 34 AD3d 782, 782-783).
“The doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in
Here, the Appellate Term‘s expression in its decision and order dated August 18, 2017, regarding the applicable rate of interest was not determined on the merits, but was instead merely advisory. The reasons are threefold. The first reason is that the Appellate Term‘s reference to the applicable rate of interest as being that of
The second, independent reason that the Appellate Term‘s mention of The third reason that the Appellate Term‘s language about Thus, the Appellate Term has unambiguously described its mention of the Thus, in the instant proceeding at issue here, Allstate was unable to establish that there was a determination on the merits in any prior proсeeding about the proper rate of interest applicable to the judgment, as to preclude the Supreme Court from considering the issue de novo (see Puryear v Hutchinson, 175 AD3d at 522). Contrary to Allstate‘s contentions, the applicable rate of accruable postjudgment interest upon the 2001 judgment was not “decided” on the merits in the Civil Court or the Appellate Term (see Ryan v New York Tel. Co., 62 NY2d at 500), and the Appellate Term‘s advisory opinion on the rate of interest is not entitled to the preclusive effects of the doctrines The Supreme Court, having properly determined that the orders of the Appellate Term did not preclude its de novo consideration of the proper rate of interest on the judgment, then also properly held that postjudgment interest on the 2001 judgment accrued at the rate of 2% per month, compounded. As a general matter, the language of general statutes are to yield to the language of specific ones (see McKinney‘s Cons Laws of NY, Book 1, Statutes § 238; Matter of Ford v New York State Racing & Wagering Bd., 107 AD3d 1071, 1078, affd 24 NY3d 488; J.N. Futia Co. v Schenectady Municipal Hous. Auth., 33 AD2d 591). In any event, Our dissenting colleague correctly notes that the $8,847.49 judgment rendered in BZ‘s favor was silent as to both an expressed award of postjudgment interest and its rate of computation. We disagree. One reason for disagreement is that BZ would have had no reason to believe that it would receive interest, at whatever point in the postjudgment time line, other than at the 2% per month rate required as a matter of law by Another equally important reason for our disagreement with our colleague involves an issue of mathematics rather than law. When Allstate paid the initial amount of $8,842.49, and mаde a subsequent payment of $14,157.21, to bring its combined total to $22,999.70, the interest paid at those times by Allstate reflects, by mathematical computation of dates and rates, a 2% per month rate of interest, compounded. Taking into account the judicially-imposed tolling period, there were 53 months for which interest was owed between the entry of the judgment on November 15, 2001, and November 1, 2005, and between June 19, 2015, and the payment of $14,157.21 on December 1, 2015, which was a pure-interest payment. Two percent interest for each of those months, with a modest additional sum for compounding, explains how the $14,157.21 payment was computed. This means that for many years prior to and into December 2015, there was never any controversy between the parties as to the proper rate of compounded interest that was to be applied to the judgment. By its actions, Allstate, in paying interest computed at 2% per month compounded, agreed with BZ that the proper rate was that required by Only after Allstate had paid BZ the interest of $14,157.21, computed at 2% per month compounded, did Allstate then file a motion in the Civil Court seeking to compel the filing of a satisfaction of judgment. The filing of a satisfaction of judgment raised nothing more than a procedural issue for the court. At that point in time, there was still no controversy between the parties about the rate of interest owed on the underlying judgment. BZ had no reason at that time to raise any issue about the rate of interest in the absence of any controversy over it. Indeed, it might have been frivolous for BZ to have raised at that time the issue of the rate of interest, as the interest had been paid by Allstate using the higher 2% per month rate compounded and represented no controversy. The applicable interest rate remained a nonissue as the parties’ litigation proceeded from the Civil Court to the Appellate Term over whether interest should have been equitably tolled, having nothing to do with the rate of its computation. Controversy over the proper rate of interest never arosе until it was created, sua sponte, by the Appellate Term‘s gratuitous advisory language in its decision and order dated August 18, 2017. As noted, the Appellate Term‘s advisory language about its suggested rate of interest was incorrect as a matter of law. Upon the issuance of the August 18, 2017 decision and order, BZ promptly sought to litigate the point by filing a motion for a clarification, and prosecuted two motions at both the Appellate Term and this Court for leave to appeal to this Court. Therefore, and contrary to the view of our dissenting colleague, this is not a circumstance which is sometimes seen in the subject area of res judicata or collateral estoppel, where a party had an “opportunity” to litigate an issue so as to be precluded from doing so in a later proceeding. There was no dispute about the proper rate of interest for the parties to actually litigate until one was unnecessarily created by the Appellate Term on August 18, 2017. This Court denied leave to appeal on March 2, 2018. The First Petition filed by BZ in the Supreme Court seeking, inter alia, a declaratory judgment as to the proper rate of interest was filed only two and a half months later. Our dissenting colleague raises concerns about the operation of In any event, the judgment was never collaterally attacked, as its terms were never amended by any court that would subject it to In its order entered April 22, 2019, the Supreme Court properly denied that branch of Allstate‘s motion which was for leave to renew its cross petition. The dismissal of the First Petition for improper service of process was not a “new fact” that would have affected the court‘s earlier determination (see Vega v Gambino, 184 AD3d 600, 601-602; Matter of O‘Gorman v O‘Gorman, 122 AD3d 744, 745). In any event, the dismissal of the First Petition for improper service of process is not a dismissal on the merits (see Kokoletsos v Semon, 176 AD2d 786, 787; Colbert v International Sec. Bur., 79 AD2d 448, 465), and fails to raise, in and of itself, the defenses of res judicata, collateral estoppel, or law of the case. The appeal from so much of the order entered April 22, 2019, as denied that branch of Allstate‘s motion which was for leave In the order appealed from entered March 8, 2019, the Supreme Court denied that branch of Allstate‘s cross petition which was to impose sanctions against BZ pursuant to Contrary to Allstate‘s contention, BZ‘s proceeding was not frivolous. BZ prevailed on the merits in the order appealed from on the issues of res judicata, collateral estoppel, law of the case, and the proper rate of statutory interest. Even if we held otherwise, the parties’ unique procedural history and the issues raised before the Supreme Court were facially arguable and not subject to the imposition of sanctions (see Stow v Stow, 262 AD2d 550, 551). The parties’ remaining contentions either are without merit or need not be reached in light of our determinations. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment, among other things, declaring that postjudgment interest on the judgment entered on November 15, 2001, in favor of BZ and against Allstate in the amount of $8,847.49 accrued at the rate of 2% per month compounded (see Lanza v Wagner, 11 NY2d 317, 334). In light of the foregoing, the ordеr entered March 8, 2019, is affirmed insofar as appealed from, and the order entered April 22, 2019, is affirmed insofar as reviewed. BARROS and CHRISTOPHER, JJ., concur. ORDERED that the order entered March 8, 2019, is affirmed insofar as appealed from; and it is further, ORDERED that the appeal from so much of the order entered April 22, 2019, as denied that branch of the motion of Allstate Insurance Company which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order entered April 22, 2019, is affirmed insofar as reviewed; and it is further, ORDERED that the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring postjudgment interest on the judgment entered on November 15, 2001, in favor of B.Z. Chiropractic, P.C., and against Allstate Insurance Company in the amount of $8,847.49 accrued at the rate of 2% per month compounded; and it is further, ORDERED that one bill of costs is awarded to B.Z. Chiropractic, P.C. MARK C. DILLON, J.P. SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT CONNOLLY, J., concurs in part and dissents in part, and votes to modify the order entered March 8, 2019, on the law, (1) by deleting the provision thereof granting that branch of the petition/complaint which was for a judgment declaring that a judgment in favor of B.Z. Chiropractic, P.C., and against Allstate I respectfully dissent in part because, in my view, a plenary proceeding in Supreme Court is an inappropriate vehicle to determine the rate at which postjudgment interest acсrues on a Civil Court judgment. Review of that issue is, in my view, barred by the doctrines of res judicata and collateral estoppel, and should have been rejected as an improper collateral attack on a judgment rendered by another court. On or about November 1, 2000, B.Z. Chiropractic, P.C. (hereinafter BZ), commenced an action against the defendant Allstate Insurance Company (hereinafter Allstate) in the Civil Court, Queens County, to recover assigned no-fault benefits in the principal sum of $3,585.16. BZ also sought attorney‘s fees, “interest at 2 percent per month from Aug. 2, 1999, compounded monthly,” and costs. Allstate answered. In an order dated October 24, 2001, the court awarded the plaintiff summary judgment. On November 15, 2001, the Clerk of the Civil Court entered judgment in favor of BZ and against Allstate in the sum of $8,847.49, which sum included $2,775 prejudgment interest at a rate of 2% per month. The judgment is silent as to the rate at which postjudgment interest is to accrue. By letter dated June 10, 2015, BZ‘s attorney wrote to Allstate, attaching a copy of the unsatisfied judgment, demanding payment of the $8,847.49 judgment, plus $221,134.17 postjudgment interest, calculated at a rate of 2% per month. Allstate tendered two chеcks to BZ, both dated July 16, 2015, in the sums of $7,852.49 and $990.00, respectively, which BZ presented Allstate moved in the Civil Court, inter alia, for a protective order, modification of the judgment, and a discharge, claiming that BZ unreasonably delayed in enforcing the judgment for nearly 15 years. In an order dated November 16, 2015, the court granted Allstate‘s motion to the extent of holding that interest would not accrue from November 1, 2005, through June 19, 2015. Allstate tendered BZ a check dated December 1, 2015, in the sum of $14,157.21, which BZ presented for payment “without prejudice.” Thereafter, Allstate moved, among other things, to compel the issuance of a satisfaction of judgment. In an order entered July 7, 2016, the Civil Court directed the Clerk to enter a satisfaction of judgment. BZ appealed the November 16, 2015 and July 7, 2016 orders to the Appellate Term for the 2nd, 11th, and 13th Judicial Districts. In a decision and order dated August 18, 2017, the Appellate Term held that the Civil Court erred in tolling the interest on the judgment and, therefore, Allstate was only entitled to a partial satisfaction of judgment. Further, the Appellate Term stated: “We note that, contrary to [BZ‘s] position, postjudgment interest should be calculated pursuant to BZ mоved for clarification of the Appellate Term‘s order or, in the alternative, for leave to appeal to this Court. In a decision and order on motion dated December 14, 2017, the Appellate Term held: “the branch of the motion seeking clarification is granted to the extent of clarifying that it was this court‘s intention to note that interest be awarded at the rate of nine percent per year as set forth in BZ moved in this Having received an unfavorable ruling on the issue of the rate of postjudgment interest from the Appellate Term, and been denied leave to appeal that ruling to this Court, BZ turned to the Suрreme Court, Queens County, as a new potential avenue for relief. On December 28, 2018, in a pleading denominated as a petition (hereinafter the petition), BZ commenced this proceeding/action in Supreme Court, Queens County, against Allstate “for a declaratory judgment and order pursuant to Allstate opposed BZ‘s petition by way of a “cross-petition to dismiss,” which sought sanctions on the ground that the petition was frivolous. Allstate argued that BZ was improperly attempting to relitigate matters that were resolved in Allstate‘s favor: “Unsatisfied with the finality of the trial courts and appellate courts, [BZ] now knowingly seeks a second bite at the apple. This, in and of itself, is frivolous.” Allstate argued that the matter must be dismissed on the grounds of res judicata and collateral estoppel, based upon the identity of the parties and issues that were previously determined on the merits. Allstate In an order entered March 8, 2019, the Supreme Court denied that branch of BZ‘s petition which sought a turnover of monies from Allstate‘s bank account, because BZ failed to name Bank of America, N.A., as a party to the action. However, the court determined that BZ was entitled to a judgment declaring that postjudgment interest on a judgment for first-party no-fault benefits accrues at a rate of 2% per month. The court reasoned that, with respect to interest on awards of first-party benefits, the Insurance Law supersedes the CPLR‘s provisions for the accrual of interest, and that “the rate of interest is not reduced simply because the claim has been reduced to a judgment.” The court denied Allstate‘s request for sanctions. Allstate moved to renew and reargue its cross petition. In an order entered April 22, 2019, the Supreme Court denied Allstate‘s motion in its entirety. Allstate appeals from the Supreme Court‘s orders entered March 8, 2019, and April 22, 2019. On appeal, Allstate argues, inter alia, that BZ improperly used a turnover proceeding to appeal the Appellate Term‘s determination as to the rate at which postjudgment interest was to be calculated on its judgment. Allstate argues that BZ‘s improper use of a turnover proceeding, if allowed, “completely upends our system of finality by permitting invalid attempts to endlessly appeal.” Allstate argues that collateral estoppel, res judicata, and claim preclusion bar this proceeding, since the two parties to the instant proceeding are the identical parties to the action initiated in Queens County Civil Court, and the Appellate Term decided the identical issue of the rate of postjudgment interest. In opposition, BZ argues, among other things, that the Appellate Term‘s determination as to the rate of postjudgment interest was advisory and non-binding, and without prejudice to BZ seeking a judicial determination in Supreme Court as to the rate at which postjudgment interest was to accrue. In my view, BZ‘s application to the Supreme Court for declaratory relief as to the rate at which postjudgment interest accrued on its Queens County Civil Court judgment was barred by res judicata and collateral estoppel, and constituted an improper collateral attack on the judgment. “Issue preclusion, also known as collateral estoppel, bars the relitigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [internal quotation marks omitted]). “The doctrine of collateral estoppel [is] a narrower species of res judicata” (Ryan v New York Tel. Co., 62 NY2d 494, 500). The doctrine of collateral estoppel “bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” (Mahler v Campagna, 60 AD3d 1009, 1011). “Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304; see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485). “While issue preclusion,” i.e., collateral estoppel, “applies only to issues actually litigated, claim preclusion (sometimes used interchangeably with ‘res judicata‘) more broadly bars the parties or their privies from relitigating issues that were or could have been raised in that action” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72 [emphasis omitted]). “[R]es judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was” ( Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 122 [internal quotation marks omitted]; see Puryear v Hutchinson, 175 AD3d 521, 522). “The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding” (Mahler v Campagna, 60 AD3d at 1011; see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72). “The doctrine encompasses the law of merger and bar—it precludes the relitigation of all claims falling within the scope of the judgment, regardless of whether or not those claims were in fact litigated” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72 [internal quotation marks omitted]). Collectively, the doctrines of collateral estoppel and res judicata “serve to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resоurces, and, by preventing inconsistent decisions, encourage reliance on adjudication” (id. at 73 [internal quotation marks omitted]). Attempts to relitigate issues that have been previously decided, or which could have been raised, strain judicial resources and “serve only to undermine public confidence in the judicial process” (id.). Although the Civil Court judgment was silent as to the rate of postjudgment interest, BZ could have sought redress in the Civil Court or by direct appeal from the judgment to correct that omission, but there is no evidence in the record that BZ sought such relief. Since the issue of postjudgment interest could have been raised in the Civil Court action, BZ was barred from resorting to the Supreme Court for a determination of that issue. BZ had a number of avenues through which it could have sought redress in the Civil Court action, without resorting to a separate plenary action. For instance, BZ could have moved for correction of the judgment to include a postjudgment rate of interest. Depending on the circumstances of the case, the rate at which interest accrues on a judicial award “may” constitute Alternatively, where a judgment‘s rate of interest is deemed to be a substantive right, an aggrieved party‘s options are more circumscribed (see Kiker v Nassau County, 85 NY2d at 881). “[A] substantive change to a prior order or judgment . . . cannot be made under (Sokoloff v Schor, 176 AD3d 120, 132-133 [citations and internal quotation marks omitted; emphasis added] [Opinion of Dillon, J.]; see Herpe v Herpe, 225 NY 323, 327 [“[substantive] errors are, under our system of procedure, to be corrected either by the vacating of the judgment or by an appeal“]). The Court of Appeals characterized its holding in Matter of City of New York (Roteeco Corp.) (33 NY2d 970), as standing for the proposition that “where rate of interest is litigated and determined by a Judge, any challenge to the interest rate However, BZ never appealed from the Civil Court‘s judgment and, assuming without deciding that the omission of the rate of postjudgment interest constituted a substantive matter, by failing to file a direct appeal, the judgment‘s terms became final (see Matter of City of New York [Roteeco Corp.], 33 NY2d at 971-972 [“Nor did the earlier partial decree applicable to the fee claimant, appellant Roteeco Corporation, reserve any right to interest at other than the then lawful 4% stаtutory rate. Both partial decrees, from which claimants took no appeal, became final and the trial court had no jurisdiction to alter its decree in any matter of substance“]). The remedies afforded by Consequently, the doctrine of res judicata precludes the instant litigation regarding the rate of postjudgment interest, insofar as the proper rate of postjudgment interest “could have been raised in the prior litigation” (Matter of Hunter, 4 NY3d 260, 269). Moreover, to the extent that BZ could have obtained relief by moving to reargue the Civil Court‘s order or judgment, there is no indication that it availed itself of that procedural mechanism (see Sokoloff v Schor, 176 AD3d at 132-133). Citing the Supreme Court‘s unique authority to render declaratory judgments, my colleagues in the majority conclude that “[t_]he Supreme Court‘s subject matter jurisdiction was not circumscribed by the fact that prior, related proceedings had been pending in the Civil Court, Queens County.” To support that proposition, the majority relies upon Abed v Zach Assoc. (124 AD2d 531, 532), and Hunter Sports Shooting Grounds, Inc. v Foley (73 AD3d 702, 705), which both hold that: “A request for relief in the form of a declaratory judgment may not be refused simply because of the pendency of a separate action if all legal and factual issues cannot be disposed of in the pending suit or if the controversy will not necessarily be determined therein” (Abed v Zach Assoc., 124 AD2d at 532; see Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d at 705). Those cases are plainly Moreover, because the doctrine of res judicata bars litigation of issues that could have been raised in a prior proceeding, I disagree with the majority‘s framing of the issue in this case as: “[W]hether an advisory opinion or dicta in an order by a court qualifies under res judicata, collateral estoppel, or the law of the case doctrine, to preclude a court in a later proceeding from considering the same issue.” Since BZ had every opportunity to ensure that the judgment specified the rate at which it believed postjudgment interest should have accrued, it is immaterial whether the Appellate Term‘s statement regarding the rate of postjudgment interest was dicta or advisory. Rather, the proper framing of the issue, for purposes of a res judicata analysis, is whether the parties could have raised the issue of postjudgment interest in the prior action. Alternatively, this action is barred by the doctrine of collateral estoppel. Here, in its decision and order dated August 18, 2017, the Appellate Term, undisputably a court of competent jurisdiction, rendered a determination on the merits as to the rate that postjudgment interest was to accrue on BZ‘s judgment: “We note that, contrary to plaintiff‘s position, postjudgment interest should be calculated pursuant to Although I agree with BZ that a purely advisory opinion should not be given collateral estoppel effect (see Thiebeau v Wahl, 91 AD2d 869), I disagree with BZ‘s contention that the Appellate Term‘s post hoc characterization of its holding as to the rate of postjudgment interest as “advisory” necessarily means that such determination was not on the merits. The rate at which interest accrued on the judgment was the subject of disagreement between the parties, and the Appellate Term rendered a determination as to that controversy (see Self-Insurer‘s Assn. v State Indus. Commn., 224 NY 13, 16 [“The function of the courts is to determine controversies between litigants. They do not give advisory opinions.” (citations omitted)]). In the same order where the Appellate Term referred to its holding as “advisory,” it also unambiguously clarified that its intention was “to note that interest be awarded at the rate of nine percent per year” (emphasis added). Since the Appellate Term actually decided the rate of postjudgment interest and this Court denied BZ‘s application for leave to appeal from the Appellate Term‘s order, the matter should have been deemed finally concluded, and barred by the doctrine of collateral estoppel (see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d at 72). Allstate argues that the Supreme Court‘s determination “completely upends our system of finality by permitting invalid attempts to endlessly appeal.” Although Allstate does not use the precise phrase “collateral attack” in its papers, the essence of Allstate‘s argument is that the proceeding/action constitutes an improper collateral attack on the judgment. While the majority dismisses this issue as unpreserved and not before us, the concepts of res judicata (which was raised) and collateral attack are so closely related that they are essentially different terms for the same pоlicy-driven prohibition on attempting to relitigate issues between parties who have already had their day in court: “[U]nder the doctrine of res judicata a matter once judicially decided is finally decided; therefore, a litigant will not be heard to attack collaterally a matter which was or could have been determined in the prior litigation” ( Friedman v State of New York, 24 NY2d 528, 535 [emphasis added]). “Generally, a judgment is not open to collateral attack where the court had jurisdiction of the subject matter and of the parties, as well as jurisdiction to render the judgment, regardless of whether the judgment was right or wrong” (73 NY Jur Judgments § 275 [footnote omitted]). “A collateral attack upon a prior judgment is an attempt to avoid, defeat, or evade a judicial decree, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking the prior judgment” (id.). Here, the Civil Court had jurisdiction over the parties as well as jurisdiction to enter a judgment as to the applicable postjudgment rate of interest and, therefore, BZ should not be permitted to collaterally attack the Civil Court judgment through the instant action. Morever, this case does not fit within аny of the narrow exceptions to the general rule prohibiting collateral attacks on judgments. The judgment is not, for instance, jurisdictionally defective (see Royal Zenith Corp. v Continental Ins. Co., 63 NY2d 975, 977 [“a judgment rendered without jurisdiction is subject to collateral attack“]), nor was it rendered as the result of a fraudulent scheme (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 752 [“The plaintiff here . . . has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack“]; see also New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 88). Additionally, although BZ was entitled to bring a direct appeal to correct the judgment‘s omission as to the rate of postjudgment interest, it failed to do so (see Gager v White, 53 NY2d 475, 484 n 1 [“It is settled that judgments where the normal appellate process has been exhausted may not be collaterally attacked“]). BZ‘s avenue for relief, if any, should have been within the context of the Queens County Civil Court action, rather than—17 years later—collaterally attacking the judgment‘s failure to specify the rate of postjudgment interest by commencing a new plenary action in Supreme Court (see Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C., 102 AD3d 544, 545; Matter of Limitone Enters., Inc. v Walker, 102 AD3d 697, 697-698; Weinstock v Citibank, 289 AD2d 326, 326). Stated differently, a court of original jurisdiction should not entertain an action for a declaration that another court‘s determination аs to a particular controversy was incorrect. FRANCESCA E. CONNOLLY, J. SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT ENTER: Aprilanne Agostino Clerk of the CourtC. The Supreme Court Properly Determined That the Applicable Rate of Interest is 2% Per Month Compounded
D. There Was No Reason or Opportunity for BZ to Earlier Litigate the Rate of Interest to Which it was Entitled as to Trigger Res Judicata or Collateral Estoppel Against It
E. Allstate‘s Motion for Leave to Renew and Reargue
F. The Supreme Court Properly Denied That Branch of Allstate‘s Cross Petition Which was for Sanctions
III. Miscellaneous
IV. Conclusion
I.
II.
III.
A. Res Judicata
B. Collateral Estoppel
C. This Proceeding/Action Constitutes an Improper Collateral Attack on the Judgment
V.