Acevedo v. Holton
| Decision Date | 13 May 1997 |
| Citation | 239 A.D.2d 194,657 N.Y.S.2d 407 |
| Parties | Jossy ACEVEDO, Plaintiff-Respondent, v. Richard HOLTON, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Morton Alpert, for Plaintiff-Respondent.
Roy Karlin, for Defendant-Appellant.
Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and RUBIN, JJ.
Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about June 6, 1996, which, in an action for personal injuries sustained in a motor vehicle accident, insofar as appealed from as limited by defendant's brief, denied defendant's motion for leave to amend his answer to add a defense of collateral estoppel, unanimously reversed, on the law, without costs or disbursements, and the motion granted with respect to the issue of plaintiff's claims for lost earnings in the sum of $21,500 for the period January 27, 1992 to November 15, 1993 and unpaid chiropractic services in the sum of $1,540.71. 1
The proposed collateral estoppel defense is predicated upon a no-fault arbitration denying the last of three contested claims for lost wages and a claim for the cost of chiropractic services. Where there has been a final determination on the merits, an arbitration award, even one never confirmed, may serve as the basis for the defense of collateral estoppel in a subsequent action. (Hilowitz v. Hilowitz, 85 A.D.2d 621, 444 N.Y.S.2d 948.)
The showing of prejudice that will defeat a motion for leave to amend "must be traced right back to the omission from the original pleading of whatever it is that the amended pleading wants to add--some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one now wants to add." (Siegel, N Y Practice, § 237, p 353.) Plaintiff's assertion that he has been prejudiced by the expenditure of considerable time and money in preparing for trial ignores the fact that defendant seeks to assert collateral estoppel only as to two narrow issues. Since most of plaintiff's claims remain intact, it cannot be said, under either a quantitative or qualitative analysis, that these expenses were unnecessarily incurred.
Collateral estoppel may be invoked against a party to preclude litigation of an issue decided against that party in a prior adjudication if there is "an identity of issue which has necessarily been decided" in the prior proceeding and there...
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