City of New York v. Caristo Constr. Corp.

62 N.Y.2d 819 (1984)

City of New York et al., Respondents, v. Caristo Construction Corp., Appellant.

Court of Appeals of the State of New York.

Argued May 1, 1984.

Decided June 5, 1984.

Joseph Arthur Cohen for appellant.

Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for respondents.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

*820MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (94 AD2d 688).

We agree that under transactional analysis, were it not for the express provision in the judgment of the United States District Court that its dismissal of respondents' *821 "post-trial asserted claim" for contract indemnification was "without prejudice", the final determination in the Federal action would preclude assertion of that claim in the present action under res judicata principles. The explicit "without prejudice" provision, however, saves the claim from such preclusion. To be given legal effect, the contention, now advanced by appellant, that it was error to have included this provision in the Federal judgment inasmuch as the claim for contract indemnification had never been pleaded or otherwise asserted in the Federal law suit, had to be raised on appeal or other application for correction of the asserted error in the Federal action (cf. McLearn v Cowen & Co., 48 N.Y.2d 696, 60 N.Y.2d 686).

Order affirmed, with costs, in a memorandum.