On Collateral Estoppel

Frankel v J. P. Morgan Chase & Co., 2010 NY Slip Op 06476 (App. Div., 2nd 2010)

We reject the appellants' argument that the Second Circuit's order should be given collateral estoppel effect on the issue of whether the powers of attorney were in fact irrevocable. For collateral estoppel to be invoked, "[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" (Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US 1096; see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199). Furthermore, collateral estoppel is available "only when it is clear that the prior determination squarely addressed and specifically decided the issue" (O'Connor v G & R Packing Co., 53 NY2d 278, 280). The Second Circuit's order does not expressly determine the issue of whether the powers of attorney are revocable, nor, under the circumstances, can we say that the order "necessarily decided" that issue (see Buechel v Bain, 97 NY2d at 303). It is not appropriate to speculate as to what questions may have been considered by the Second Circuit and, therefore, we reach the issue of whether the powers of attorney were revocable.

The bold is mine.

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