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HERMAN G. SCHWARTZ v. PUBLIC ADMINISTRATOR COUNTY BRONX (06/18/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1968.NY.42188 <http://www.versuslaw.com>; 291 N.Y.S.2d 151; 30 A.D.2d 193 June 18, 1968 HERMAN G. SCHWARTZ, RESPONDENT, AND ELAINE SCHWARTZ, PLAINTIFF,v.PUBLIC ADMINISTRATOR OF THE COUNTY OF BRONX, AS ADMINISTRATOR OF THE ESTATE OF GEORGE PANOFF, DECEASED, APPELLANT Appeal from an order of the Supreme Court at Special Term (Birdie Amsterdam, J.), entered October 20, 1967 in Bronx County, which denied defendant's motion for judgment dismissing the complaint. Robert G. Sheller of counsel (Morris L. Wolf and Edgar T. Schleider with him on the brief; Edward A. Harmon, attorney), for appellant. Kenneth B. Becker for respondent. Eager, J. P. Capozzoli and Tilzer, JJ., concur with Eager, J. P.,; Rabin, J., dissents in opinion in which McGivern, J., concurs. Author: Eager


Appeal from an order of the Supreme Court at Special Term (Birdie Amsterdam, J.), entered October 20, 1967 in Bronx County, which denied defendant's motion for judgment dismissing the complaint.

Eager, J. P. Capozzoli and Tilzer, JJ., concur with Eager, J. P.,; Rabin, J., dissents in opinion in which McGivern, J., concurs.

Author: Eager

 Sound judicial reasoning, in light of recent decisions of our courts, requires the sustaining of the defense of res judicata to the causes of action of the plaintiff Herman Schwartz. Defendant's motion to dismiss such causes of action should have been granted.

The complaint sets forth three causes of action -- one for the personal injuries of Herman Schwartz, the second for injuries sustained by his wife, and the third for recovery by Herman Schwartz for loss of services and medical expenses resulting from his wife's injuries. The plaintiffs' injuries resulted from an automobile accident wherein a vehicle, owned and operated by the plaintiff Herman Schwartz, in which his wife and others were passengers, collided with a vehicle owned by George Panoff (now deceased), and operated by his son, Bernard Panoff. This action by Herman Schwartz and his wife is maintained against George Panoff's administrator. The passengers in the Schwartz vehicle, other than Mrs. Schwartz, had heretofore brought a personal injury action against Herman Schwartz and against George Panoff, owner, and Bernard Panoff, the operator of the Panoff vehicle. In this prior action, it was alleged that the accident was caused by the joint negligence of the drivers of the two vehicles including Schwartz. Such action was duly tried and judgment therein was recovered by the plaintiffs against Herman Schwartz and George Panoff, as co-defendants. The defendant administrator of Panoff asserts the defense that the judgment in the prior action bars a recovery by the plaintiff Herman Schwartz in the present action. The administrator points out that Schwartz may recover in this action only upon a showing of his freedom from contributory negligence, whereas the prior judgment conclusively establishes that his negligence contributed to cause the collision of the two vehicles.

Special Term, relying principally upon Glaser v. Huette (232 App. Div. 119, affd. 256 N. Y. 686), rejected the contention that Herman Schwartz' causes were barred by the judgment recovered against him by the passengers in the prior action. It is clear, however, that the Glaser case should no longer be blindly followed as a controlling precedent. Recent decisions in the Court of Appeals give clear indication that Glaser may not be accepted as an authority under the present day application of the principles of res judicata and collateral estoppel.

In Israel v. Wood Dolson Co. (1 N.Y.2d 116, 119), the court noted "that the fact that a party has not had his day in court on an issue as against a particular litigant is not decisive in determining whether the defense of res judicata is applicable."

In Cummings v. Dresher (18 N.Y.2d 105), the determination in a Federal court action that both drivers of two colliding automobiles were negligent was held to bar the right of the defendants in that action (the owner and the driver of one of the vehicles) to maintain an independent action against the other vehicle driver, who had been a plaintiff in the prior action. It is true that the drivers of the two vehicles were adverse parties in the prior Federal court action but Chief Judge Desmond significantly wrote (p. 107): "We do not understand why in a reasonable, prompt and nonrepetitious judicial system the negligence or no of these two drivers must be decided all over again, after having once been settled after a jury trial in which all these same people were parties and all the same issues tried and decided."

Finally, the Court of Appeals in B. R. De Witt, Inc. v. Hall (19 N.Y.2d 141), held that the time has come to overturn the requirement of mutuality as an element of the defense of res judicata or collateral estoppel; "we are saying that the 'doctrine of mutuality' is a dead letter. While we have not expressly so held, the trend of our decisions leads to this conclusion" (p. 147). It is true that in a footnote to the opinion of Judge Scilleppi, it is stated that the Glaser case was clearly distinguishable from the case then before the court and that whether Glaser would be followed was not before the court. Yet, the trend of judicial decision culminating in De Witt gives every indication that Glaser would not now be followed. (See, also, 36 Fordham L. Rev. 1, 13.)

The rule prestiged by Glaser may no longer be adhered to on the theory that the co-defendants in the prior action did not litigate the question of negligence as true and complete adversaries. "Under the modern view, even if the co-defendants against whom a joint judgment was recovered in a passenger's action are held not to have been adversaries as to each other, the defense of res judicata may nevertheless be interposed to bar a subsequent action by one of the defendants against the other upon a claim growing out of the same accident. The application of res judicata in that situation is certainly fair and just. Each defendant was a full participant upon the trial of the passenger's action. Each defendant had a full opportunity to present his version of the accident and to try to exculpate himself and to shift the blame, in whole or in part, to the other defendant. Each defendant assumed the same risk that an adverse finding on the issue of his negligence would bar him from subsequently asserting his own claim for personal injury or property damage against his co-defendant. If either of the defendants had wished to have all the details of his own claim concurrently considered by the jury, he could have availed himself of his right to interpose a cross claim against his co-defendant (Civ. Prac. Act, § 264; see, also, Civ. Prac. Act, § 474; Deneau v. Beatty, 195 Misc. 649). It is certainly within the limits of fairness to hold that res judicata may be invoked against the subsequent assertion of a claim against a former co-defendant which could easily have been interposed as a cross claim in the original action. There is no unfairness in holding that a defendant may not, by refraining from interposing a cross claim against his co-defendant, reserve for himself a second chance to try out the issues adjudicated in the first action." (Concurring opn. of Halpern, J. in Ordway v. White, 14 A.D.2d 498, 501.)

We should bear in mind, as stated in the minority opinion, that we are dealing here with that aspect of res judicata which is referred to as collateral estoppel. Thereunder, the inquiry before this court is whether or not the issue as to the negligence of Herman Schwartz, dispositive here, was determined by the prior judgment. On principles now settled, such prior judgment is binding and conclusive upon Herman Schwartz as to the material and relevant issues actually and fully litigated on the merits in the prior action and determined by the judgment entered therein. This is a proper application of the doctrine of collateral estoppel. (See 50 C. J. S., Judgments, §§ 593, 687; 56 Harv. L. Rev. 1; Restatement, Judgments, § 68; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 307; Ripley v. Storer, 309 N. Y. 506; Hinchey v. Sellers, 7 N.Y.2d 287; Friedman v. Park Lane Motors, 18 A.D.2d 262, 264; Hollenbeck v. AEtna Cas. & Sur. Co., 215 App. Div. 609, 611, affd. 243 N. Y. 540.)

Contrary to what is questioned in the minority opinion, it is clear that the prior action included the litigation of the issue of whether or not the negligence of Herman Schwartz caused or contributed to the collision. He does not dispute such fact in presenting his arguments on this appeal. The damages recovered by the passengers in the prior action and the damages claimed by Herman Schwartz in the present action resulted from alleged injuries received in the collision of the car driven by Mr. Schwartz and another vehicle; and the negligence alleged by the passengers in the prior action as a basis for recovery of their damages was negligence in the operation of the cars. This was the allegation which was litigated in the prior action, and Herman Schwartz does not now contend otherwise. Implicit in the verdict of the jury in favor of the passengers in such prior action and in the judgment entered thereon is a finding that Herman Schwartz was negligent in the operation of his vehicle. It was on this basis that the passengers recovered judgment against Herman Schwartz. This is undisputed and it would serve no purpose to remand the matter for the examination of the pleadings and the record in the prior action.

There is no merit to plaintiff's further argument that there remain undecided the issues appertaining to the possible application of the last clear chance doctrine. The allegations of plaintiffs' complaint in the present action as to the happening of the accident would not support a recovery on the basis of the application of such doctrine. Furthermore, the right of plaintiff Herman Schwartz to recover is expressly based upon the now unsupportable allegation that he was free from contributory negligence; and, in any event, such allegation is entirely inconsistent with a recovery on the theory of last clear chance.

The plaintiff Herman Schwartz is not entitled to a further opportunity to litigate the issue as to his negligence in the cause of the accident. If the present action, as to the first and third causes of action pleaded in favor of Herman Schwartz, is allowed to continue, we could have a determination herein which would undermine the basis upon which the judgment was rendered in the prior action. Such inconsistency should be avoided (see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 307, 308, supra ; Ripley v. Storer, 309 N. Y. 506, 514, supra).

The first and third causes of action seeking recovery for the injuries alleged to have been sustained by Herman Schwartz in the accident and recovery for his loss of services and medical expenses incurred as a result of his wife's injuries, should be dismissed. Accordingly, the order, entered October 20, 1967, should be reversed on the law, without costs and ...


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