Liberty Mut. Ins. Co. v Charbonier

[*1] Liberty Mut. Ins. Co. v Charbonier 2010 NY Slip Op 50913(U) [27 Misc 3d 139(A)] Decided on May 24, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570201/10

Liberty Mutual Insurance Company a/s/o Juan Enamorado, Plaintiff-Respondent,

against

Wandy Charbonier, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated December 29, 2009, which denied her motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated December 29, 2009, affirmed, with $10 costs.

Civil Court correctly denied defendant's motion for summary judgment dismissing the complaint on the ground that the present action was barred by the doctrine of res judicata or collateral estoppel, since the prior action upon which defendant relies was not decided on the merits (see Travelers Indem. Co. v Fernandez, 55 AD3d 746 [2008]; see generally Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8 [2008]) and the issue which defendant seeks to prevent plaintiff from litigating was not decided in the prior action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 24, 2010