to orders as well as judgments and explaining "the 1971 dispositions were on the merits . . . and no appeal having been taken those dispositions became final."); Rudd v. Cornell, 171 N.Y. 114, 127-29, 63 N.E. 823, 827-28 (1902) (listing factors necessary for estoppel and explaining that "it is only a final judgment upon the merits which is competent as evidence and conclusive in a subsequent action between the same parties or their privies, and an interlocutory order is not such a judgment.").
At first glance, several lower court cases seem to advocate a more formal approach to finding preclusion. For example, in Berkshire Nursing Center Inc. v. Len Realty Co., 168 A.D.2d 475, 562 N.Y.S.2d 716, 1990 N.Y. App. Div. LEXIS 15431, *2 (2d Dep't 1990), the court notes that "because no order or final judgment was ever entered in the prior action, the doctrine of collateral estoppel is inapplicable." However, the cases upon which Berkshire Nursing relies -- and cases following similar reasoning -- involve verdicts issued or settlement agreements entered into before the court considering the case ever reached a final decision on the merits. See, e.g., Ott v. Barash, 109 A.D.2d 254, 262, 491 N.Y.S.2d 661 (2d Dep't 1985); Peterson v. Forkey, 50 A.D.2d 774, 774-75, 376 N.Y.S.2d 560, 560-61 (1975); Mandracchia v. Russo, 53 Misc.2d 1018, 1019-20, 280 N.Y.S.2d 429, 431-32 (1967); see also Begelman v. Begelman, 170 A.D.2d 562, 566 N.Y.S.2d 337, 1991 N.Y. App. Div. LEXIS 2249, *5-6 (2d Dep't 1991) (denying res judicata effect to judgment never entered because court could not determine whether dismissal was "on the merits"). Therefore, these cases differ from the instant case where Justice Sklar's decision was on the merits and intended as final.
Other factors in this case lend further support to finding collateral estoppel despite the absence of formal entry. First, Feldstein did not raise the defendants' failure to settle judgment until oral argument; since that date, although he has requested permission from Justice Sklar to move to block entry altogether,
as far as this court is aware, the motion has yet to be filed. Second, Feldstein himself treated Justice Sklar's order as final by moving before the Appellate Division, First Department, to have his appeal heard on the original record and to proceed in forma pauperis. Cf. Bell v. New York Higher Education Assistance Corp., 158 A.D.2d 305, 550 N.Y.S.2d 712 (1st Dep't 1990) (stating in dicta that "any complaint with respect to whether that order had, in fact, been entered was waived by reason of plaintiff's failure to raise such an argument on his prior appeals."), dismissed on appeal, 76 N.Y.2d 930, 564 N.E.2d 664, 563 N.Y.S.2d 54 (1990). Third, in deciding Feldstein's motion, the Appellate Division also treated the order as final.
Fourth and most importantly, Feldstein had a full and fair opportunity to litigate his claims in state court; allowing him to come into federal court and raise those very same claims simply because of defendants' careless inattention to detail would elevate form over substance. This court refuses to construe the law of collateral estoppel so narrowly.
For the reasons explained above, defendants' motion for summary judgment on the grounds of collateral estoppel is hereby granted.
Dated: Brooklyn, New York
October 20, 1992
I. LEO GLASSER, U.S.D.J.