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Kisielewicz v. Mullins

Appellate Division of the Supreme Court of New York, Second Department
Jun 5, 1967
28 A.D.2d 680 (N.Y. App. Div. 1967)

Summary

In Kisielewicz v. Mullins, 28 A.D.2d 680, 280 N.Y.S.2d 715 (1967), the New York Supreme Court Appellate Division, found that a judgment in a prior action against a defendant was res judicata with respect to issues of negligence, inter alia, where the earlier action litigated both the subrogation claim of the plaintiff's insurance carrier as well as the plaintiff's claim for damages which were not reimbursed by the insurer because of a deductible damage clause.

Summary of this case from Alexander v. Elzie

Opinion

June 5, 1967


Order of the Supreme Court, Queens County, dated December 27, 1966 and made on reargument, reversed insofar as appealed from, with $10 costs and disbursements, and defendant's motion for summary judgment granted, on the ground that the issues of his negligence and plaintiff's freedom from contributory negligence were previously determined in the prior action in the Civil Court of the City of New York and are res judicata in the present action ( Cummings v. Dresher, 18 N.Y.2d 105, 107-108; B.R. De Witt, Inc. v. Hall, 19 N.Y.2d 141). Teper v. Rackman ( 264 App. Div. 981), cited in the memorandum at Special Term, is distinguishable. There, only the insurance carrier's subrogation claim was litigated. In the instant action the prior suit included also a claim for plaintiff's damage not reimbursed by the insurance carrier because of the deductible damage clause. Thus, plaintiff was a real party in interest in the previous action. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.


Summaries of

Kisielewicz v. Mullins

Appellate Division of the Supreme Court of New York, Second Department
Jun 5, 1967
28 A.D.2d 680 (N.Y. App. Div. 1967)

In Kisielewicz v. Mullins, 28 A.D.2d 680, 280 N.Y.S.2d 715 (1967), the New York Supreme Court Appellate Division, found that a judgment in a prior action against a defendant was res judicata with respect to issues of negligence, inter alia, where the earlier action litigated both the subrogation claim of the plaintiff's insurance carrier as well as the plaintiff's claim for damages which were not reimbursed by the insurer because of a deductible damage clause.

Summary of this case from Alexander v. Elzie
Case details for

Kisielewicz v. Mullins

Case Details

Full title:JANE M. KISIELEWICZ, Respondent, v. EDWARD A. MULLINS, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 5, 1967

Citations

28 A.D.2d 680 (N.Y. App. Div. 1967)

Citing Cases

Matter of Hartford Acc. Ind. Co.

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