Cobbs v. Thomas

• Decision Date: 05 February 1968
• Citation: 55 Misc.2d 800,286 N.Y.S.2d 943
• Parties: Eleanor COBBS, Plaintiff, v. Wilbur THOMAS, Defendant.
• Court: New York Supreme Court

Page 943

286 N.Y.S.2d 943

55 Misc.2d 800

Eleanor COBBS, Plaintiff, v. Wilbur THOMAS, Defendant.

Supreme Court, Trial and Special Term, Dutchess County.

Feb. 5, 1968.

Perry Satz, Poughkeepsie, for plaintiff, for the motion.

Wilson & Bave, Yonkers, Michael A. Hayes, Jr., Yonkers, of counsel, for defendant, in opposition.

LEONARD J. SUPPLE, Justice.

Plaintiff moves for summary judgment in a negligence action. At the time of the accident she was riding as a passenger in the front seat of an automobile owned and being operated by the defendant. One Robert Williams, who was riding as a passenger in the rear seat of the automobile at the time of the accident, has already recovered for his injuries upon a jury verdict in an independent action he brought against the same defendant. Upon the instant motion the plaintiff says that the judgment in the Williams case is Res judicata as to the defendant's negligence in this case.

If Williams had lost his lawsuit, the doctrine of Res judicata would not be applied to bar the plaintiff's action against the defendant, because neither she nor her 'privy' were parties to the Williams litigation. (Neenan v. Woodside Astoria Transportation Co., Inc., et ano., 261 N.Y. 159, 181 N.E. 744; Brooks v. Horning, 27 A.D.2d 874, 875, 278 N.Y.S.2d 629, 631.) Since the plaintiff would not be barred if Williams had lost his suit, the rule of mutuality of estoppel, if applicable, would prevent the plaintiff from using Williams' success to advance her cause (Elder v. New York and Pennsylvania Motor Express, Inc., 284 N.Y. 350, 31 N.E.2d 188; Berner v. British Commonwealth Pacific Airlines, Ltd., 2 Cir., 346 F.2d 532, 540, cert. den. 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472). Plaintiff points out that our highest court in B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 147, 278 N.Y.S.2d 596, 601, 225 N.E.2d 195, 198 has said that '* * * the 'doctrine of mutuality' is a dead letter.' She says that the removal of the roadblock of lack of mutuality of estoppel mandates a finding that defendant breached his duty to her to use due care.

Upon facts substantially the same as here, and upon a similar motion, the Court granted partial summary judgment so as to find that the defendant was negligent and that such negligence was a proximate cause of the accident, while reserving for the trial the issues of contributory negligence and damages (Quick, as Administrator v. O'Connell, as Administratrix, et al., 53 Misc.2d 1091, 281 N.Y.S.2d 120). The holding was criticized in The Quarterly Survey of New York Practice, 42 St. Johns Law Review 438, 463. On the other hand, the decision would not frighten the authors of a standard practice test. (See 5 Weinstein-Korn-Miller, New York Civil Practice, § 5011.40, pp. 50--130, note 258.)

However, the language of the Court in B. R. DeWitt, Inc. v. Hall, supra, 19 N.Y.2d at p. 148, 278 N.Y.S.2d at p. 601, 225 N.E.2d at p. 199, referred to in the aforesaid criticism, deserves repetition here:

'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...