These personal injury actions, which had been litigated in different counties but consolidated for purposes of this appeal, arose out of an bike accident that took place on the Bruckner Expressway, around 3:30 A.M. on June 6, 1992. CL lost control of his vehicle, which became disabled in the left lane of traffic. A passing motorist, JV, stopped to help. CL, JV and his brother caught the attention of a NYCHA police car in the right lane, driven by Maher, who was accompanied by another police officer in the passenger seat.
The three men wound up in the middle lane of the highway to speak with Maher, but within moments were hit by another car that had been traveling in the middle lane. This car, driven by SSM and owned by GM, also hit the police car. CL and JV were hospitalized for their injuries.
CL commenced an action in Bronx Supreme Court against NYCHA, Maher, SSM and GM, seeking damages for his personal injuries (the CL action). JV commenced a separate action in Bronx Supreme Court against SSM, GM and CL, seeking damages for JV’s injuries (the JV action). SSM and GM named CL as a third-party defendant in the JV action. CL, in turn, asserted a fourth-party claim against NYCHA and Maher, seeking contribution from them should he be found liable for JV’s injuries.
NYCHA successfully moved to change the venue of the CL action to New York County, and CL’s motion to consolidate the CL and JV actions was denied. Therefore, CL retained the law firm of Fitzgerald & Fitzgerald (F&F) to litigate his damages claims in the CL action, while his insurance company designated Beesecker & Koors (now known as the firm of L.A. Beesecker, Esq.) to defend CL in the JV action.
By order dated June 11, 1998, Bronx Supreme Court granted the motion of defendants NYCHA and Maher to dismiss CL’s fourth-party complaint against them in the JV action. The Beesecker firm did not oppose this motion. NYCHA and Maher then moved to dismiss CL’s complaint in the CL action on res judicata/collateral estoppel grounds, asserting that Bronx Supreme Court’s dismissal of the fourth-party complaint precluded CL from relitigating the issue of NYCHA’s liability for his injuries. The NYCHA defendants also asserted their entitlement to summary judgment on the merits. In the first of the orders on appeal, the Supreme Court, New York County, denied the defendants’ motion.
F&F then made a cross-motion before Bronx Supreme Court to be substituted as counsel in the JV action, and for renewal, reargument and modification of the order dismissing the fourth-party complaint. In the second of the orders on appeal, the Judge presiding over the JV action granted this cross-motion only to the extent of limiting [the prior order’s] applicability to this action, before this Court. In other words, Bronx Supreme Court endeavored to clarify that it had not meant for the dismissal of the fourth-party contribution claim to preclude litigation of CL’s own personal injury claims in another forum, particularly since Bronx Supreme Court had previously refused to consolidate the actions.
We reject the NYCHA defendants’ argument that CL is collaterally estopped from litigating the issue of defendants’ negligence in the New York County action. For collateral estoppel (also known as issue preclusion) to apply, there must be an identical 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 (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71). Neither of those requirements is met here.
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