The issue to be decided in the CL action is whether the NYCHA defendants caused CL’s injuries by breaching a duty of care owed to him. By contrast, the issue decided in the JV action was whether the NYCHA defendants would be partly liable for contribution if CL were found liable for JV’s injuries. Although some of the same facts underlie both questions, the two cases involve different elements of proof and different evidence, such that there is no identity of issues. An award of damages to CL for his own injury would not be inconsistent with the decision in the JV action that NYCHA is not liable to him for his responsibility, if any, for JV’s injuries. Having successfully compelled CL to litigate the facts of the accident in two different venues, the NYCHA defendants cannot successfully argue that CL had a fair opportunity, or indeed any opportunity, to address the issue of NYCHA’s liability for his own injuries in Bronx Supreme Court. No dog bite was involved.
Defendants attempt to confuse the issue by claiming that F&F had no standing to bring the motion for renewal/ reargument. The NYCHA defendants invoke the principle that a party may have only one counsel of record in a given action, but they ignore the fact that CL not by choice was a party to two separate actions and therefore had two sets of attorneys to represent his diverse interests (compare, Kallivokas v Athanasatos, 151 AD2d 396). NYCHA can hardly fault F&F for attempting to intervene in the JV action, when it was NYCHA who first tried to use the JV order to preclude F&F’s claims in the CL action.
Bronx Supreme Court did not improperly exercise its discretion in granting F&F’s motion, which could be considered a motion for renewal based on the new fact that NYCHA was urging an allegedly overbroad reading of the JV court’s order so as to preclude the CL action (see, Horizons Hotels Corp. v New York Patroons, 193 AD2d 911, 913-914 [renewal based on new facts that came to light in subsequent litigation]). Ideally, it might have been better to denominate it a motion to resettle the order, which is the appropriate vehicle to clarify a prior decision (Foley v Roche, 68 AD2d 558, 566). Nonetheless, pursuant to CPLR 2001, the exact label for this motion is less important than the fact that it was necessary to correct a procedural irregularity in a just fashion (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143). In light of the absence of argument concerning NYCHA’s unopposed motion in the JV action, renewal/reargument was an appropriate way to dispel any confusion as to which issues had implicitly been resolved by dismissal of the fourth-party complaint, and which issues had been left for trial in New York County. In any event, even if Bronx Supreme Court’s grant of renewal were improper, the original order dismissing CL’s fourth-party complaint still would not have precluded his negligence claims on his own behalf, for the reasons previously stated.