Wisell v
Indo-Med Commodities, Inc., 2010 NY Slip Op 05388 (App. Div., 2nd,
2010)
In this case, the plaintiff's demand for a jury trial on all
issues was, in part, improperly stricken, and, on a prior appeal, this Court
reversed and directed a joint trial of legal and equitable claims, with a jury
to determine the legal claims and the court to determine the equitable claims (see Wisell v Indo-Med Commodities, 303
AD2d 749, 750). However, at the time of this Court's decision and order in
March 2003, the parties were in the midst of a nonjury trial. The parties, in a so-ordered stipulation,
agreed to allow the nonjury trial to proceed, with "the jury trial with
respect to the plaintiff's claims and the legal counterclaims" commencing
after the completion of the nonjury trial. Although the stipulation provided
that "the commencement of the jury trial need not await the [trial]
Court's decision" with respect to the defendants' equitable counterclaims,
unless a directed verdict was awarded to "any party," or there was a
"further Decision or finding of [the trial] Court," the parties did,
in fact, wait until after a decision of the trial court was rendered, and
judgment was entered on that decision.
Before the jury trial could commence, the defendants moved to
dismiss the complaint based upon the doctrines of res judicata and collateral
estoppel, claiming that all factual issues were resolved in their favor with
entry of judgment on their counterclaims. The
order appealed from denied the motion on the ground that the stipulation
preserved the plaintiff's right to a jury trial on his complaint, and the
possibility of inconsistent verdicts was contemplated when the Appellate
Division issued its initial decision [*2](see Wisell v Indo-Med Commodities, 303
AD2d 749, 750, citing Mercantile & Gen. Reins. Co. v Colonial
Assur. Co., 82 NY2d 248), and the
parties entered into their stipulation. We affirm.
The doctrine of collateral estoppel "precludes a party from
relitigating in a subsequent action or proceeding an issue clearly raised in a
prior action or proceeding and decided against that party or those in privity,
whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494,
500; Chiara v Town of New Castle, 61 AD3d 915, 916). Pursuant to the
doctrine of res judicata, a final judgment precludes reconsideration of all
claims which could have or should have been litigated in the prior action or
proceeding against the same party (see
Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). However, in the instant case, we are not
dealing with findings in a prior action; we are dealing with the same
action. Accordingly, the
affirmative defenses of collateral estoppel and res judicata are inapplicable
to the instant dispute, and the Supreme Court properly denied the defendants'
motion to dismiss the complaint as barred by the doctrines of collateral
estoppel and res judicata.
The bold is mine.
bruteforcelawyer.com 