| Leung v Suffolk Plate Glass Co., Inc. |
| 2010 NY Slip Op 07900 [78 AD3d 663] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Laurence Leung et al., as Administrators of the Estate of Caroline BixLeung, Deceased, Respondents, v Suffolk Plate Glass Co., Inc., et al., Appellants, et al.,Defendants. |
—[*1] Gaffin & Mayo, P.C., New York, N.Y. (Sarah D. Trimming of counsel), forrespondents.
In an action, inter alia, to recover damages for wrongful death, etc., the defendants Suffolk PlateGlass Co., Inc., and C. Klingenberger appeal from an order of the Supreme Court, Queens County(Grays, J.), entered September 25, 2009, which denied their motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them, with leave to renew after thecompletion of discovery.
Ordered that the order is affirmed, with costs.
A vehicle owned by the defendant U-Haul Titling, LLC, and operated by the defendant IonisKokiasmenos (hereinafter the Kokiasmenos vehicle) collided with a vehicle operated by CharlesKlingenberger, sued herein as C. Klingenberger, and owned by the defendant Suffolk Plate Glass Co.,Inc. (hereinafter SPGC). The Kokiasmenos vehicle then crashed into the front of an Arby's restaurant.The plaintiffs' decedent was inside the Arby's restaurant at the time of the incident, and died as a resultof the accident.
SPGC and Klingenberger (hereinafter together the appellants) together moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiffsopposed the motion, but the appellants' codefendants did not. The Supreme Court denied the motion,and we affirm.
"The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decidedin a prior action and is determinative of the issues disputed in the present action, provided that therewas a full and fair opportunity to contest the decision now alleged to be controlling" (Mahler v Campagna, 60 AD3d 1009,1011 [2009]; see Tydings v Greenfield, Stein& Senior, LLP, 11 NY3d 195, 199 [2008]; Buechel v Bain, 97 NY2d 295,303-304 [2001], cert denied 535 US 1096 [2002]; Altegra Credit Co. v Tin Chu, 29 AD3d 718 [2006]). The party seekingthe benefit of the doctrine of collateral estoppel bears the burden of establishing that the identical issuewas necessarily decided in the prior action, and "the party to be [*2]estopped bears the burden of demonstrating the absence of a full and fairopportunity to contest the prior determination" (Mahler v Campagna, 60 AD3d at 1011;see Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]; Franklin Dev. Co., Inc. v Atlantic Mut. Ins.Co., 60 AD3d 897, 899 [2009]; Luscher v Arrua, 21 AD3d 1005, 1007 [2005]).
Contrary to the appellants' contention, the plaintiffs are not estopped from litigating the issue of theliability and comparative fault of the defendants Klingenberger and Kokiasmenos, since the plaintiffs didnot have a full and fair opportunity to litigate that issue at an administrative hearing held before the NewYork State Department of Motor Vehicles (see generally Ryan v New York Tel. Co., 62NY2d at 500-501; cf. Alamo vMcDaniel, 44 AD3d 149, 154 [2007]). Since discovery is still outstanding in the action, theSupreme Court properly denied the appellants' motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against them, with leave to renew after the completion ofdiscovery (see CPLR 3212 [f]). Santucci, J.P., Balkin, Leventhal and Austin, JJ., concur.