| Kedik v Kedik |
| 2011 NY Slip Op 05923 [86 AD3d 766] |
| July 14, 2011 |
| Appellate Division, Third Department |
| Theresa Kedik, Respondent, v Brian Kedik,Appellant. |
—[*1] The Harding Firm, Niskayuna (Charles R. Harding of counsel), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered March 15, 2010in Saratoga County, which partially granted plaintiff's motion to, among other things, directdefendant to pay $20,000 to plaintiff.
During the pendency of this matrimonial action, plaintiff and defendant sold their maritalresidence. Plaintiff and defendant agreed with plaintiff's parents to escrow the sale proceeds inlight of looming litigation regarding a mortgage on the home held by the parents. The parentsthereafter commenced an action to recover on the mortgage against both parties. Plaintiff anddefendant subsequently entered into an in-court stipulation agreeing, among other things, toequally divide any excess proceeds from the sale following resolution of the parents' action.Their judgment of divorce incorporated, without merging, this stipulation.
Neither plaintiff nor defendant appeared in the parents' lawsuit, and a default judgment wasentered against defendant only. The parents levied upon the escrow account and the full amountremaining therein was remitted, exceeding the sum of their judgment. Defendant's subsequentmotion to vacate the default judgment was granted by Supreme Court (Kramer, J.) and, in accordwith a settlement between the parents and defendant, the court further ordered the parents toreturn $40,000 to defendant. Plaintiff, who had not yet made a formal appearance, then moved tomodify the order such that the money would be returned to plaintiff and defendant jointly inaccord with their stipulation; Supreme Court denied this motion, without explanation. [*2]Plaintiff thereafter sought an order in this action directing defendantto pay $20,000 to plaintiff, which was granted by Supreme Court (Nolan Jr., J.). Defendantappeals.
Defendant contends that plaintiff was precluded from seeking an order directing him to pay aportion of the remaining funds to her. Finding that neither res judicata nor collateral estoppelprecluded plaintiff's claim, we affirm. The doctrine of res judicata bars litigation of a claim thatwas or could have been raised in a prior action where the earlier disposition was a final judgmenton the merits and the party had a full and fair opportunity to litigate any cause of action arisingfrom the same transaction (see Matter ofMartin v Central Off. Review Comm. of N.Y. State Dept. of Correctional Servs., 69 AD3d1237, 1238 [2010]; Kinsman vTuretsky, 21 AD3d 1246, 1246 [2005], lv denied 6 NY3d 702 [2005]). Here,there is no explanation of the basis for the denial of plaintiff's motion in the parents' action.Lacking any evidence that the prior determination was rendered "on the merits," res judicata doesnot bar plaintiff's motion in the present action (compare McDonald v Lengel, 2 AD3d 1182, 1183-1184 [2003];Vinci v Northside Partnership, 250 AD2d 965, 965-966 [1998]).
The doctrine of collateral estoppel similarly bars a party in a subsequent action fromrelitigating an issue that has previously been decided against it (see Huntington Natl. Bank v Cornelius,80 AD3d 245, 247 [2010], lv denied 16 NY3d 708 [2011]). However, preclusiveeffect will only be given when two requirements are met: "[f]irst, the identical issue necessarilymust have been decided in the prior action and be decisive of the present action, and second, theparty to be precluded from relitigating the issue must have had a full and fair opportunity tocontest the prior determination" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985];accord Matter of Howard v StatureElec., Inc., 72 AD3d 1167, 1169 [2010], lv dismissed 15 NY3d 906 [2010]).Again, the basis for denial of plaintiff's motion cannot be gleaned from the record. Defendant hasthus failed to demonstrate that the issue previously decided was identical to and decisive of thepresent matter (compare O'Connor v G & R Packing Co., 53 NY2d 278, 282-283 [1981];Matter of Howard v Stature Elec., Inc., 72 AD3d at 1169-1170; Specialty Rests. Corp.v Barry, 236 AD2d 754, 755-756 [1997]). Accordingly, plaintiff is not precluded fromseeking payment from defendant, in accord with the clear terms of the parties' stipulation andjudgment of divorce.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.