New York Cent. Mut. Fire Ins. Co. v Huntington Orange & White Taxi, Inc.

[*1] New York Cent. Mut. Fire Ins. Co. v Huntington Orange & White Taxi, Inc. 2007 NY Slip Op 52314(U) [17 Misc 3d 1136(A)] Decided on November 8, 2007 Suffolk Dist Ct Hackeling, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2007
Suffolk Dist Ct

New York Central Mutual Fire Insurance Company a/s/o Diamond, Gloria S., Plaintiff

against

Huntington Orange & White Taxi, Inc., Defendant



HUC 156-07



Appearances:

Jacobson & Schwartz, Esqs.

Scott Wein, Esq.

510 Merrick Road

P.O. Box 46

Rockville Centre, New York 11571

Attorneys for the Plaintiff

Baker, McEvoy, Morrissey & Moskovits, PC

Ellyn B. Wilder, Esq.

330 West 34th Street, 7th Floor

New York, New York 10001

Attorneys for the Defendant

C. Stephen Hackeling, J.

ORDERED that the application of the plaintiff for summary judgment on the issue of liability is denied.

The Undisputed Facts

This is action for property damage arising out of a motor vehicle accident that occurred on November 3, 2004, allegedly due to the negligence of the defendant. The plaintiff, as assignee of Gloria S. Diamond, seeks summary judgment pursuant to the doctrines of

"res judicata" and "collateral estoppel" arguing that there was a prior jury verdict on April 17, 2007 in the Supreme Court, Suffolk County (Wies v. Harris, Huntington Orange & White, Inc., [*2]Huntington Taxi Corp., Huntington Orange & White, Inc., Huntington Orange & White Trans. Corp and Diamond, Index No. 29788-04) on the question of liability. The jury verdict was in favor of Ms. Diamond and the Wieses, but was never formalized via a formal judgment as the parties settled the action immediately post verdict.

Issue Presented

Are the issue preclusion doctrines of res judicata and collateral estoppel invokable in the absence of a final judgment entered after a jury trial?

Legal Discussion

It is the plaintiff's contention that as a result of the April 17, 2007 jury verdict that the theory of res judicata must be applied to this case. . . [as] it is clear that "a decision on liability has been rendered and the plaintiff. . . as subrogee of Gloria S. Diamond is entitled to an order granting summary judgment with respect to the question of liability in this action". Further, the plaintiff argues that the doctrine of collateral estoppel is applicable to the instant situation as "[n]owhere in the defendant's papers are there any arguments with respect to the question of facts and findings not being identical in both Supreme Court action and the case before this Court".

The defendant opposes the plaintiff's motion for summary judgment arguing inter alia that after the jury verdict in the Supreme Court case the matter was settled, and that there was never a final judgment or order entered in the prior action. The defendant attaches as Exhibit "B" the proof of the settlement, and a copy of the Stipulation of Discontinuance with prejudice. The defendant contends that as there was never a final judgment or order entered in the Supreme Court matter, the doctrine of res judicata is inapplicable, and the plaintiff may not rely on it to seek summary judgment on the issue of liability in this property

damage action.

After reviewing the moving and answering papers, as well as the applicable case law, it is the opinion of the Court that the plaintiff's application for summary judgment on the issue of liability must be denied. A decision or verdict upon which no formal judgment has been entered has no conclusive character, and is ineffective as a bar to subsequent proceedings. See, Ruben v. American and Foreign Ins. Co., 185 AD2d 63 (NY AD 4th Dept. 1992). Moreover, even though a prior verdict may appear to be decisive on the precise issue raised in a later action arising out of a motor vehicle accident, it may not act as a bar under the theories of res judicata and collateral estoppel, in the absence of the entry of a judgment. See, Peterson v. Forkey, 5O AD2d 774 (NY AD 1st Dept. 1975) ). Findings of fact and conclusions of law are not res judicata unless followed by a final judgment based thereon. See, People ex rel McCanliss v. McCanliss, 255 NY 456 ( NY 1931). Similarly, a jury's verdict does not constitute a bar in a subsequent action between the same parties unless followed by a judgment based thereon. See Brizse v. Lisman, 231 NY 205 (NY 1921). [*3]

The starting point for both preclusion doctrines (res judicata and collateral estoppel) is that a Court of competent jurisdiction has rendered a final a valid judgment on the merits, See, Gallo v. Teplitz Tri-State Recycling, 254 AD2d 253 (NY AD 2nd Dept 1998); Begelman v. Begelman, 170 AD2d 562 (NY AD 2nd Dept. 1991); Berkshire Nursing Center, Inc. v. Len Realty Co., 168 AD2d 475 (NY AD2d 1990). The Second Department in Ott v. Barish 109 AD2d 254 (NY AD 2nd Dept. 1998), citing and quoting the opinion of the First Department in Peterson v. Forkey (supra ), stated the applicable principle:

It is evident that a general prerequisite to invocation of either res judicata or collateral estoppel is the existence of a final judgment, i.e., a final judgment determination which necessarily decided the very cause of action or issue that a party now seeks to litigate in a subsequent action or proceeding ( Peterson v. Forkey, 50 AD2d 774, 376 NYS2d 560; see also, 5 Weinstein Korn-Miller, NY Civ. Prac., par 5011.10

Further, Peterson v. Forkey states that "[b]oth the doctrines of res judicata and collateral estoppel; have as their preresquisite the entry of a judgment", and citing and quoting from Rudd v. Cornell 171 NY 114 (NY 1902) holds that:

Neither the verdict of a jury nor the findings of a Court in a prior action upon the precise point involved in a subsequent action between the same parties constitutes a bar, unless followed by a judgment based thereon, or into which the verdict or findings entered.

In the matter sub judice, it is evident that the foregoing preresquisite has not been met. The Supreme Court action was not terminated by a final judgment or order. Rather, the claim was terminated upon the execution of a settlement, and the discontinuance of the action. Consequently, there is no basis upon which to apply either res judicata or collateral estoppel to the plaintiff's motion for summary judgment on the issue of liability.

Accordingly, the plaintiff's motion is denied.

______________________________

J.D.C.

Dated:____________________

Decision to be published____yes___no.