Sepulveda v Dayal, 2010 NY Slip Op 00782 (App. Div., 1st, 2010)
The record shows that prior to obtaining the medical records indicating which physicians had reviewed the sonograms taken during the pregnancy of plaintiff mother, plaintiffs commenced an action naming Montefiore Medical Center and the 43 radiologists employed at the time of the alleged malpractice. After ascertaining the identity of the four physicians who had interpreted the sonograms, none of whom had been named in the first action, plaintiffs commenced a second action against those four physicians and Montefiore. The defendants in the first action subsequently moved for summary judgment and with plaintiffs failing to oppose, the motion was granted on default and judgment was entered in favor of those defendants. After the defendants moved to dismiss the second action, which was resolved by a stipulation discontinuing it “without prejudice to bringing a new action on behalf of the infant plaintiff,” plaintiffs commenced this action naming the same four physicians, but not Montefiore.
Although leave to amend pleadings should be freely granted in the absence of prejudice or surprise (see generally Fahey v County of Ontario, 44 NY2d 934 [1978]), as the motion court found, the proposed amendment is lacking in merit (see Board of Mgrs. of Gramercy Park Habitat Condominium v Zucker, 190 AD2d 636 [1993]). To determine whether collateral estoppel applies, a two-part test must be satisfied. “First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]).
Defendants have failed to satisfy either prong, since the court in the first action did not decide the ultimate issue of whether the instant defendants were negligent. Furthermore, plaintiffs did not have a full and fair opportunity to litigate their claims. By the time the [*2]defendants in the first action moved for summary judgment, plaintiffs were aware that those defendants had not been involved in their medical treatment and there was no reason to raise the merits of their claims (see e.g. Baxter v Fulton Ice & Cube Co., 106 AD2d 82, 85-86 [1985]; compare Kret v Brookdale Hosp. Med. Ctr., 61 NY2d 861 [1984], affg 93 AD2d 449 [1983]).
Found another.
99 Cents Concepts, Inc. v Queens Broadway, LLC, 2010 NY Slip Op 00824 (App. Div., 2nd, 2010)
Under the doctrine of res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; Matter of Reilly v Reid, 45 NY2d 24, 27). As a general rule, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357; see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347). Although the first through sixth causes of action asserted by the plaintiff in this action arise out of the same transaction as its counterclaim in the Civil Court proceeding, the so-ordered stipulation settling the Civil Court proceeding expressly recited that it was without prejudice to the Supreme Court action, and did not dismiss the plaintiff’s counterclaim. Under these circumstances, the so-ordered stipulation was not a final judgment on the merits of the plaintiff’s counterclaim which would be entitled to res judicata effect in this action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349; City of New York v Caristo Constr. Corp., 62 NY2d 819, 821; Miller Mfg. Co. v Zeiler, 45 NY2d 956, 958; Matter of Coleman v Coleman, 1 AD3d 833, 834; Brandenberg v Primus Assoc., 304 AD2d 694, 695; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d 599; A. Colish, Inc. v Abramson, 178 AD2d 252). Furthermore, the doctrine of collateral estoppel is not applicable here because the issue of whether the plaintiff was entitled to, and deprived of, full possession of the basement of the premises never was actually litigated and decided in the Civil Court proceeding, which was settled without prejudice to this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Brandenberg v Primus Assoc., 304 AD2d at 695; Singleton Mgt. v Compere, 243 AD2d 213, 217; 1829 Caton Realty v Caton BMT Assoc., 225 AD2d at 599). Accordingly, the Supreme Court should not have granted those branches of the defendant’s motion which were to dismiss the first through sixth causes of action.
The bold is mine.
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