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ELIZABETH COLON v. JUAN BERMUDEZ ET AL. (11/12/69)

CIVIL COURT OF THE CITY OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1969.NY.43472 <http://www.versuslaw.com>; 305 N.Y.S.2d 630; 61 Misc. 2d 255 November 12, 1969 ELIZABETH COLON, AN INFANT, BY HER MOTHER AND NATURAL GUARDIAN, MARIANA COLON, ET AL., PLAINTIFFS,v.JUAN BERMUDEZ ET AL., DEFENDANTS Isaac Goldstein and Henry Fabricant for Lucy L. Laham and another defendants. Isadore C. Bleiberg for plaintiffs. Abraham I. Kalina, J. Author: Kalina


Abraham I. Kalina, J.

Author: Kalina

 This is a motion for an order granting the defendants Lucy L. Laham and John Laham leave to serve an amended answer to set forth an affirmative defense alleging facts which it is claimed constitute as a matter of law an estoppel and bar to the present action, on the ground that the facts alleged in said defense occurred since the service of the original answer, and for a further order pursuant to CPLR 3211 (subd. [a], par. 5) dismissing the complaint as against the moving defendants on the ground that there has been a prior determination of the issue of negligence on the part of the said defendants, which determination requires the doctrine of the res judicata to be applied collaterally estopping and barring the plaintiffs from maintaining and continuing the action.

In opposing the application the plaintiffs claim that the motion to amend the answer so as to allege the aforesaid defense of collateral estoppel should be denied because of laches and that the motion to dismiss the complaint should be denied on the ground that the facts alleged in proposed amended answer do not constitute a collateral estoppel of the issue of negligence in that the parties in the prior proceeding where such determination was made and the parties in the action in this court are not the same. CPLR 3025 (subd. [b]) provides that a party may amend his pleadings, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court and that such leave shall be freely given.

The test as to whether the court should exercise its discretion and permit an amendment is whether or not the adversary will be prejudiced by such amendment. (See Kane v. Long Is. Jewish Hosp., 29 A.D.2d 554; Dittmar Explosives v. A. E. Ottaviano, Inc., 20 N.Y.2d 498.)

The court has read the proposed amended answer and the voluminous papers submitted on this application, which include the record of the proceedings in which the prior determination of the issue of negligence on the part of the moving defendants was made, and is satisfied that the defendants are not guilty of laches and that the plaintiffs will not be prejudiced in law by the amendment. Furthermore, the plaintiffs do not dispute the truth of the allegations set forth in the proposed amended answer, and the facts alleged in the proposed amended answer as hereinafter set forth have no different legal consequences by reason of the delay, if any, in the making of the application.

Accordingly, the branch of the motion to amend the answer is granted.

The moving defendants request that, if such leave is granted to amend the answer to allege facts which would in law call for the doctrine of collateral estoppel to be invoked, that the court treat the application to dismiss the complaint as a motion for summary judgment.

CPLR 3211 (subd. [c]) provides that upon the hearing of a motion made pursuant to the provisions of CPLR 3211 (subd. [a]), if either party submits evidence which could properly be considered on a motion for summary judgment, the court may treat the motion as one for summary judgment. The court is of the opinion that the evidence submitted on this application warrants the court to treat the motion to dismiss the complaint as a motion for summary judgment. As such, the motion is not addressed to the sufficiency of the complaint. There is no claim that the facts alleged in the complaint are insufficient to constitute a cause of action or that the complaint is any wise defective. What is claimed is that the events which occurred subsequent to the service of the original answer which are fully set forth in the amended answer and which are not disputed constitute a bar to the present action in this court in accordance with the legal doctrines of res judicata and collateral estoppel.

This action is brought to recover damages for personal injuries sustained by the plaintiffs as a result of alleged negligent operation of an automobile owned and operated by the defendant Juan Bermudez, in which plaintiffs were passengers, which was involved in an intersection collision with an automobile owned by the defendant John Laham and operated by his wife, the defendant Lucy L. Laham.

It appears that the Manhattan Casualty Company which issued a liability insurance policy to the defendant John Laham was placed in liquidation by order of the Supreme Court, New York County, dated May 24, 1963. Plaintiffs, appearing by their present attorney, filed a proof of claim in the liquidation proceedings alleging in substance the allegations set forth in the complaint herein. This claim was disallowed. Plaintiffs filed objections to the disallowance. By order of a Justice of the Supreme Court dated May 11, 1966, a Referee was appointed to hear and report on the issues raised by the objections.

A hearing was commenced before the Referee on November 15, 1966 and adjourned to and concluded on November 29, 1966. The record indicates that all of the parties to the present action were present at the hearing. It should be noted at this time that the defendant Bermudez originally appeared by an attorney in this action but subsequent thereto for reasons not disclosed in the record and which are immaterial to the issues herein is now appearing in person. The plaintiffs were represented at the hearing by their present attorney. The defendants Laham were represented by an attorney. The record indicates that all of the parties to this action testified at the hearing, and that the defendant Bermudez, who is a son of the plaintiff Mariana Colon, was called as a witness by the plaintiffs. The right of confrontation and cross-examination was afforded to all of the parties.

The Referee rendered a report to the Supreme Court dated January 20, 1967 in which he found that the defendant Lucy L. Laham was free from negligence in the operation of her automobile and that the proximate cause of the accident was the negligence of the defendant Bermudez. By order dated June 6, 1967, the report of the Referee was confirmed. A motion for reargument was denied.

In opposing the motion the plaintiffs as heretofore indicated do not challenge the sequence of events as documented by the exhibits submitted herein, or that the plaintiffs as claimants in the liquidation proceedings did not have a full and fair trial. However, the plaintiffs allege and urge upon this court that the doctrine of res judicata and collateral estoppel should not be applied, on the ground as heretofore indicated that the parties in the prior proceeding and the parties to this action are not identical in that the prior proceeding was between the plaintiffs as claimants and the Manhattan Casualty Company in liquidation and that the defendants in this action were not parties to said proceedings.

Much has been written on the subjects of res judicata and collateral estoppel. The legal principles involved in the two doctrines are not difficult to comprehend. But their application to ...


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