Camaioni v. Caruso

• Decision Date: 03 May 1968
• Citation: 290 N.Y.S.2d 325,57 Misc. 2d 107
• Parties: Victor CAMAIONI et al., Plaintiffs, v. Antonio CARUSO et al., Defendants.
• Court: New York City Court

Page 325

290 N.Y.S.2d 325

57 Misc.2d 107

Victor CAMAIONI et al., Plaintiffs, v.Antonio CARUSO et al., Defendants.

Civil Court of the City of New York, Bronx County, Special Term, Part I.

May 3, 1968.

Philip Myer, New York City, for plaintiffs.

Benjamin Rubinfeld, New York City, for defendantParadise Service Corp., Anthony Iannucci.

Raymond J. MacDonnell, New York City, for defendant Caruso.

ARTHUR WACHTEL, Judge.

By this motion plaintiffs, passengers in a vehicle owned and operated by defendant Caruso, seek summary judgment in this action for personal injuries against defendantParadise Service Corp., the owner of a taxicab, which was involved in collision with Caruso's vehicle.Plaintiffs seek to make 'offensive' use of a prior judgment obtained by Caruso in an action brought in this court against said Paradise Service Corp.

Plaintiffs rely on B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 wherein 'offensive' use was permitted of a prior judgment upon a jury verdict for $5000.00 for personal injuries in favor of Farnum the driver of a truck, against Hall, the owner of the other vehicle involved in the accident.In the second action the owner of the truck sued Hall for property damage.

In Good Health Dairy Products Corp. of Rochester, N.Y. v. Emery, 275 N.Y. 14, 9 N,.e,2d 758, 112 A.L.R. 401, the Court of Appeals permitted the owner to use as a defense in a property damage action, a prior judgment obtained by her driver in the driver's action for personal injuries.Prior thereto in Haverhill v. International Ry. Co., 217 App.Div. 521, 217 N.Y.S. 522, aff'd.244 N.Y. 582, 155 N.E. 905, the Court of Appeals had refused to permit the 'offensive' use by the owner in his property damage suit of a prior judgment for personal injuries obtained by his driver.Haverhill was cited by the respondents in Good Health but was not cited by the court in its opinion.However, Haverhill's fact pattern was presented again in De Witt.Not only had the Court of Appeals in Haverhill refused to permit 'offensive' use by the owner of his driver's personal injury judgment, but also in Elder v. New York & Penn. Motor Express, 284 N.Y. 350, 31 N.E.2d 188, 133 A.L.R. 176the Court had refused to permit affirmative use by the driver of a prior judgment in favor of his owner.The rule of mutuality had been a factor in both cases.Upon the basis of the fact pattern, Naverhill was precedent; Elder was not.De Witt decided that 'offensive' use could be made by the owner of his driver's personal injury judgment.In so doing, the Court of Appeals ruled that mutuality of estoppel no longer applied.The court overruled Haverhill, and the dicta in Elder.But the court was not required to, nor did it specifically overrule the holding of Elder upon Elder's fact pattern.The majority opinion carefully limited its holding, stating as follows:

'In this case, where the issues, as framed by the pleadings, were no broader and no different than those raised in the first lawsuit; where the defendant here offers no reason for not holding him to the determination in the first action; where it is unquestioned (and probably unquestionable) that the first action was defended with full vigor and opportunity to be heard; and where the plaintiff in the present action, the owner of the vehicle, derives his right to recovery from the plaintiff in the first action, the operator of said vehicle, although they do not technically stand in the relationship of privity, there is no reason either in policy or precedent to hold that the judgment in the Farnum case is not conclusive in the present action (seeCurrie, Mutuality of Collateral Estoppel, 9 Stan.L.Rev. 281; Currie, Civil Procedure;The Tempest Brews, 53 Calif.L.Rev. 25;Thornton, Further Comment on Collateral Estoppel, 28 BrooklynL.Rev. 250).'(P. 148, 278 N.Y.S.2d p. 601, 225 N.E.2d p. 199).

The case at bar is distinguishable.Here the passengers are seeking 'offensive' use of their owner-driver's judgment.They do not 'derive' their right to recovery from Caruso, in the sense that the owner in De Witt 'derived', his right to recovery from his driver (Cr. Neenan v. Woodside Astoria Transp. Co., 261 N.Y. 159, 184 N.E. 744).

In Neenan v. Woodside Astoria Transp. Co., supra, the Court of Appeals held that a prior judgment in an action by Huppmann, an automobile owner, against a bus company could not be used as a defense by the successful owner, in a subsequent action by a passenger of the bus against both the automobile owner and the bus company.The court said at pages 161, 162, 184 N.E. at page 745: 'Huppmann sought to introduce the judgment roll in his action against the transportation company, but, of course, it was not Res adjudicata as to the passenger, Mary Neenan, as she was not a party to that action.She was free to prove that Huppmann was also negligent.* * * A plaintiff may hold all joint tortfeasors'.

Neenan would seem inconsistent with Good Health, supra.However, the Court of Appeals, in Good Health distinguished Neenan upon the groung that 'Not only was there no privity between the bus company and its passenger, but the liability of neither was derived from the other, and the first trial afforded no opportunity to litigate the relative rights and liabilities as between the passenger and the owner of the automobile'.(Page 19 of 275 N.Y., page 760 of 9 N.E.2d).

In a similar fact pattern, the Appellate Division of this Department refused collateral estoppel in Quatroche v. Consolidated Edison Co. of N.Y.(1960)11 A.D.2d 665, 201 N.Y.S.2d 520, upon the authority of Elder, prior to De Witt.

Until Elder, supra is specifically overruled by the Court of Appeals, upon the same facts, this court cannot hold otherwise.The Appellate Division of this Department has so held in connection with the fact pattern in Glaser v. Huette, 232 App.Div. 119, 249 N.Y.S. 374, aff'd. mem.256 N.Y. 686, 177 N.E. 193;(Friedman v. Salvati, 11 A.D.2d 104, 106, 201 N.Y.S.2d 709, 711), and so also have other Departments.(SeeMac Gilfrey v. Hotaling(App.Div.3rd Dept.)26 A.D.2d 977(25), 274 N.Y.S.2d 850.Concurring opinion of Presiding Justice of Appellate Division Third Department, in Brooks v. Horning, 27 A.D.2d 874, 876--877, 278 N.Y.S.2d 629, 634;Grande v. Torello(App.Civ.2d Dept.)12 A.D.2d 937, 210 N.Y.S.2d 562;Bartolone v. Niagara Car & Truck Rentals Inc., 29 A.D.2d 869, 288 N.Y.S.2d 312(2d Dept.)and see alsoD'Addato v. Basin Taxi, Inc., Civil Court, Bronx County Sp. I., Callahan, J., 56 Misc.2d 834, 290 N.Y.S.2d 472.Indeed the Court of Appeals in De Witt significantly observed in a foot-note, p. 147, 278 N.Y.S.2d p. 601, 225 N.E.2d p. 198, with reference to Glaser and Minkoff v. Brenner, 13 A.D.2d 838, aff'd.10 N.Y.2d 1030, 225 N.Y.S.2d 47, 180 N.E.2d 434'whether Glaser and Minkoff should be followed is not before us'.By the same token until the fact pattern of Elder is before the Court of Appeals and is reviewed, this Court cannot assert that Elder is overruled.See also, Cobbs v. Thomas, 55 Misc.2d 800, 286 N.Y.S.2d 943.

Judge Breitel in his dissent in De Witt (in which Van Voorhis, J., and Bergan J. concurred) warned of the practical disadvantages in a too facile extension of the doctrine, pointing out the necessity of examining whether defendant had in fact his day in court in a forum not of his own choosing, particularly in view of the difference in litigation risk in motor vehicle accident cases involving claims for personal injury and property damages.And quite relevant to the fact pattern in the case at bar, he termed 'more grievous' the situation 'where the prior judgment may have been for the relatively small amount of property damage incurred, and it is sought to give that judgment binding effect in a personal injury action involving claims for huge sums'(19 N.Y.2d p. 149, 278 N.Y.S.2d p. 602, 225 N.E.2d p. 199).

Similar considerations were raised by the Supreme Court of the United States in Cromwell v. County of Sac., 94 U.S. 351 at page 356, 24 L.Ed. 195.See also, Restatement, Judgments, Section 68pages 300, 301;Section 93 Comment b;The Judicial Conference, Thirteenth Annual Report 1968pages 125, 126; 5 Weinstein-Korn-Miller, New York Civil Practice 5011.27; and Cf. James v. Saul, decided by this court in 17 Misc.2d 371, 184 N.Y.S.2d 934 unanimously affirmed by App. Term 1st Dept., 57 Misc.2d 107, 292 N.Y.S.2d 304.

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