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. ElzieOpinion
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.