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Supreme Court, Special Term, Nassau CountyMay 15, 1962
35 Misc. 2d 126 (N.Y. Misc. 1962)
35 Misc. 2d 126229 N.Y.S.2d 43

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May 15, 1962

E. Edan Spencer for defendant.

Miller Bush for plaintiff.

Motion for summary judgment dismissing the complaint is granted.

The action is for malpractice. The defendant, a dentist, sued in August, 1957, for professional services rendered to plaintiff herein. A default judgment was entered on February 3, 1958. The plaintiff, as defendant therein, appeared, answered, and interposed a counterclaim for injuries caused by the carelessness of the dentist, but did not appear at the trial.

A prior default judgment bars a subsequent suit on the issues which were, or could have been, determined in the earlier action ( Goebel v. Iffla, 111 N.Y. 170; Blair v. Bartlett, 75 N.Y. 150). The Blair case involved a default judgment in a Justices' Court for services rendered by a physician and the effect of the default judgment as a bar to any subsequent action for malpractice. Necessarily decided, according to Blair ( supra, p. 154) was that the services rendered were of value to the patient and "if of use, they could not have been harmful; and if not harmful, there could not have been mala praxis in the performance of them."

The plaintiff contends that he chose not to defend the prior action because he could not obtain professional witnesses to testify as to the faulty work of the defendant herein. A similar contention was raised and rejected in Statter v. Statter ( 2 N.Y.2d 668). In Statter, the plaintiff wife urged that her failure to interpose a counterclaim for annulment in an earlier action by her husband for a separation was caused by her lack of evidence at that time to establish her cause of action. As stated on page 673: "The essence of res judicata is the fact that a court has already been presented with the subject sought to be litigated and has rendered a judicial determination thereon. The question of what evidence has been actually produced is immaterial."