| Ackman v Haberer |
| 2013 NY Slip Op 07590 [111 AD3d 1378] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Kimberly L. Ackman, Appellant-Respondent, v MarkHaberer, Respondent-Appellant. |
—[*1] Hagelin Kent LLC, Buffalo (Victor M. Wright of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Erie County (John L.Michalski, A.J.), entered July 24, 2012. The order denied both the motion of defendant todismiss the complaint and the cross motion of plaintiff for summary judgment on thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting plaintiff's cross motion for summary judgment on the complaint in theamount of $75,000 and as modified the order is affirmed without costs.
Memorandum: This is the second of two personal injury actions commenced byplaintiff, both of which arise out of an accident involving the collision of twosnowmobiles. Plaintiff was the passenger on defendant's snowmobile, and she previouslysued only the driver of the other snowmobile. Notably, defendant was impleaded as athird-party defendant in the prior action. Plaintiff, however, did not seek to assert a directclaim against him until she made a postverdict motion for that relief, after the juryreturned a verdict in the amount of $150,000, with an apportionment of liability of 50%each to the driver of the other snowmobile and to the defendant herein. Supreme Courtdenied that motion, and plaintiff thereafter commenced this action. Plaintiff appeals anddefendant cross-appeals from an order that denied both defendant's motion to dismiss thecomplaint and plaintiff's cross motion for summary judgment on the complaint in theamount of $75,000.
Addressing first the cross appeal, we reject defendant's contention that the courterred in denying his motion to dismiss the complaint on the ground that plaintiff's actionis barred by, inter alia, res judicata. " 'The doctrine of res judicata operates to precludethe reconsideration of claims actually litigated and resolved in a prior proceeding, as wellas claims for different relief against the same party which arise out of the same factualgrouping or transaction, and which should have or could have been resolved in the priorproceeding' " (Ippolito v TJCDev., LLC, 83 AD3d 57, 71 [2011]). Here, while plaintiff could have asserted adirect claim against defendant in the prior action (see e.g. CPLR 1009), "resjudicata, or claim preclusion, is . . . inapplicable, for the basic reason thatthe plaintiff never asserted any claim against this defendant" (Seaman vFichet-Bauche N. Am., 176 AD2d 793, 794 [1991]). Moreover, "[t]he fact that theplaintiff sued one tort[ ]feasor does not automatically preclude [her] from suing anothertort[ ]feasor later" (id. at 794-795; see CPLR 3002 [a]). We also rejectdefendant's contention that this action is barred by the doctrine of judicial estoppelinasmuch as plaintiff is not in this action adopting a position contrary to a positionassumed in the prior action (seeKilcer v Niagara Mohawk Power Corp., 86 AD3d 682, 683 [2011]). We haveconsidered the other grounds asserted by defendant in support of his motion andconclude that they are without merit.
With respect to plaintiff's appeal, we agree that plaintiff is entitled to summaryjudgment in the amount sought in the complaint based on the doctrine of collateralestoppel. We therefore modify the order accordingly. "The doctrine of collateral estoppelprecludes a party from relitigating 'an issue which has previously been decided againsthim in a proceeding in which he had a fair opportunity to fully litigate the point' "(Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985], quoting Gilberg vBarbieri, 53 NY2d 285, 291 [1981]). "The party seeking the benefit of collateralestoppel has the burden of demonstrating the identity of the issues in the presentlitigation and the prior determination, whereas the party attempting to defeat itsapplication has the burden of establishing the absence of a full and fair opportunity tolitigate the issue in the prior action" (id. at 456). Here, the issues are identicalbecause in the prior action defendant was required to defend against the claim that hewas negligent in the operation of his snowmobile and that his negligence was aproximate cause of this accident. Moreover, he had a full and fair opportunity to litigatethose issues in the prior action and was in no way limited by virtue of the fact that he wasa third-party defendant as opposed to a direct defendant. Specifically, CPLR 1008 grantsto a third-party defendant all of the rights a direct defendant has to defend against aplaintiff's claims, including the full rights of discovery afforded by CPLR article 31 (see generally Cogan v MadeiraAssoc., 1 AD3d 1066, 1067 [2003]). Given that defendant had a full and fairopportunity to litigate the negligence claim against him in the prior action as well as tocontest the value of plaintiff's injuries, plaintiff is entitled to summary judgment (see generally Fofana v 41 W. 34thSt., LLC, 71 AD3d 445, 448 [2010], lv denied 14 NY3d 713 [2010]).Present—Scudder, P.J., Smith, Fahey, Sconiers and Valentino, JJ.