Opinion
December 16, 1965
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously reversed, without costs of this appeal to either party and motion granted, without costs. Memorandum: In our opinion the papers presented by appellant at Special Term sufficiently establish that the issue of contributory negligence of plaintiff's intestate was fully litigated and decided upon the merits against plaintiff in her prior action against the State of New York, which action arose out of the same accident as the present action against appellant. Defendant has sustained its burden of proof ( Marine T.R. Corp. v. Switzerland Gen. Ins. Co., 263 N.Y. 139), and has "adequately established" ( Stookey v. State of New York, 18 A.D.2d 959) that judgment was rendered on the merits ( Converse v. Sickles, 146 N.Y. 200; Genet v. Delaware Hudson Canal Co., 170 N.Y. 278) by "clear proof that such adjudication has been made" ( Bell v. Merrifield, 109 N.Y. 202, 213). The prior judgment is a complete defense and precludes prosecution of the cause of action herein (CPLR 3211, subd. [a], par. 5; Israel v. Wood Dolson Co., 1 N.Y.2d 116; Friedman v. Park Lane Motors, 18 A.D.2d 262.)