| Farren v Lisogorsky |
| 2011 NY Slip Op 06366 [87 AD3d 713] |
| August 30, 2011 |
| Appellate Division, Second Department |
| Gary Farren et al., Appellants, v Norman Lisogorsky,Respondent. |
—[*1] Epstein Frankini & Grammatico, Woodbury, N.Y. (Michael Callari III of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), enteredAugust 27, 2010, as granted that branch of the defendant's motion which was to dismiss thecomplaint pursuant to CPLR 3211 (a) (5).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(5) is denied.
The plaintiff Gary Farren (hereinafter the plaintiff) brought a prescription to Metro Pharmacyin Forest Hills, and requested that it be filled. The prescription was filled with the wrong drug,allegedly causing the plaintiff to sustain personal injuries.
Prior to commencing the instant action, the plaintiff and his wife, suing derivately,commenced a separate action against Metropolitan Pharmacy, Inc. (hereinafter Metropolitan), thecorporate owner and operator of Metro Pharmacy. In that action, Metropolitan conceded liability,but contested damages. Prior to the trial on the issue of damages in the action againstMetropolitan, the parties settled for the sum of $300,000. The plaintiff executed a release in favorof "Metropolitan Pharmacy, Inc. d/b/a Metro Pharmacy . . . its heirs, executors,administrators, successors and assigns," and, on February 3, 2010, the parties to the actionagainst Metropolitan entered into a stipulation of discontinuance "with prejudice." The plaintiffsthereafter commenced the instant action against the defendant, an employee and part owner ofMetropolitan, who was allegedly the pharmacist who misfilled the prescription.
Prior to answering, the defendant moved to dismiss the complaint pursuant to CPLR 3211 (a)(5) and (7), for summary judgment dismissing the complaint, and for an award of sanctions. TheSupreme Court, inter alia, granted that branch of the motion which was to dismiss the complaintpursuant to CPLR 3211 (a) (5), holding that the doctrine of res judicata precluded the instantaction. We reverse the order insofar as appealed from.[*2]
" '[T]he general doctrine of res judicata gives bindingeffect to the judgment of a court of competent jurisdiction and prevents the parties to an action,and those in privity with them, from subsequently relitigating any questions that were necessarilydecided therein' " (Landau, P.C. vLaRossa, Mitchell & Ross, 11 NY3d 8, 13 [2008], quoting Matter of Grainger [SheaEnters.], 309 NY 605, 616 [1956]). Although the doctrine of res judicata may be invokedwhere there is either a final judgment in an action between the parties, or a stipulation ofsettlement withdrawing a complaint or cause of action with prejudice (see Liberty Assoc. v Etkin, 69 AD3d681, 682-683 [2010]), to establish "privity" of the kind required for the application of resjudicata, the party raising a res judicata defense must demonstrate a connection between the partyto be precluded and a party to the prior action "such that the interests of the nonparty can be saidto have been represented in the prior proceeding" (Green v Santa Fe Indus., 70 NY2d244, 253 [1987]).
The doctrine of res judicata is inapplicable to the instant action, as the plaintiffs neverasserted any claim against the defendant in his capacity as an employee of Metropolitan, and seekhere to hold him liable solely in his professional capacity as a pharmacist (see City of New York v Welsbach Elec.Corp., 9 NY3d 124, 127-128 [2007]; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665[2010]). The fact that the plaintiffs sued one tortfeasor, Metropolitan, does not automaticallypreclude them from suing another tortfeasor, such as the defendant herein, in a subsequent action(see Seaman v Fichet-Bauche N. Am., 176 AD2d 793, 794 [1991]). In addition, thedefendant inaptly sought to invoke res judicata against the plaintiffs based on his alleged privitywith Metropolitan. Since there was an insufficient basis upon which to conclude that thedefendant was in privity with Metropolitan, the Supreme Court incorrectly granted that branch ofthe defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint basedon the doctrine of res judicata.
The defendant's remaining contentions are without merit. Angiolillo, J.P., Balkin, Dickersonand Cohen, JJ., concur.