Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The affirmative defenses alleging negligence and misconduct of plaintiff Superintendent in both his liquidating and regulatory roles were properly dismissed as either noncognizable or for lack of an appropriate factual predicate ( see, Corcoran v. National Union Fire Ins. Co., 143 A.D.2d 309; Matter of Ideal Mut. Ins. Co., 140 A.D.2d 62, 68). The affirmative defense based on failure to join an indispensable party was properly held to be barred by collateral estoppel, the issue of the Vermont Commissioner's alleged negligence having been previously litigated and the Chaits having had a full and fair opportunity to participate either directly or in privity with Ambassador Group ( see, Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 486). We modify only to correct the court's inadvertent dismissal of that portion of appellants' thirteenth affirmative defense alleging misconduct by defendant Coopers Lybrand.
Concur — Rosenberger, J. P., Ellerin, Nardelli and Wallach, JJ.