Howard v. City of New York

• Decision Date: 20 December 1971
• Citation: 327 N.Y.S.2d 429,38 A.D.2d 89
• Parties: Florence I. HOWARD, as administratrix, etc., Respondent, v. The CITY OF NEW YORK, Defendant, and Thomas Hickey et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 429

327 N.Y.S.2d 429

38 A.D.2d 89

Florence I. HOWARD, as administratrix, etc., Respondent, v. The CITY OF NEW YORK, Defendant, and Thomas Hickey et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 20, 1971.

Coppola & Lawless, Brooklyn (William F. Larkin, New York City, of counsel), for appellant Cassese.

Patrick J. Hughes, New York City, for appellant Hickey.

Julius Itzkowitz, New York City, for respondent.

Before LATHAM, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.

GULOTTA, Justice.

These appeals bring up for review the correctness of two decisions which, upon reargument, disallowed the pleading of a defense of Res judicata by two of the defendants-- Cassese, the owner of one of the automobiles involved in the accident upon which this action is based, and Hickey, the thief who was driving Cassese's car and who appears in the action by the Motor Vehicle Accident Indemnification Corporation. The question involved is the application of the rule of collateral estoppel, as recently amplified and extended in Schwartz v. Public Administrator (24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (dec. 1969)).

The plaintiff in the present action is the administratrix of James Howard, who was the driver of a car owned by Moyer & Sons when it was involved in an intersection collision on April 4, 1965 with the Cassese vehicle, in which accident Howard lost his life. Two passengers in the Moyer automobile, Ralph and Peter Principe, were injured and sued both owners and drivers in a second action. (Howard's estate was named as a defendant and served with process.)

Although started six months after the present action, the Principe action came to trial first in a split trial on the issue of liability and resulted in a jury verdict against Moyer and Howard's estate only exonerating both Hickey and Cassese of any negligence. The defendant City of New York was not a party to the Principe action. Since Cassese concededly was not responsible for the actions of Hickey, the thief, the negligence charged to him was in leaving his vehicle not properly attended, in violation of subdivision (a) of section 1210 of the Vehicle & Traffic Law. However, it appears that this issue, in the final phase of the trial, was withdrawn from the jury.

As annunciated in Schwartz (supra), the rule of collateral estoppel now requires an identity of an issue which has necessarily been decided in the prior action and is decisive of the present action and, secondly, a showing that there had been a full and fair opportunity to contest the decision now said to be controlling. Gone are any requirements for identity of parties, mutuality of estoppel or the like.

We have the basic requirement in this case. The administratrix was represented in the Principe trial by the attorneys for the insurance carrier for Moyer, as she had a right to be, since her husband was covered by the Moyer policy. As was pointed out in the first of the four opinions written by the Special Term, she was vigorously and diligently defended, since there was no division of loyalties and no motive to do otherwise. She did not physically attend the trial or have her attorney in the present action attend, which was of course her prerogative, but she did not thereby enlarge her rights so that she could thereafter take advantage of a favorable decision or disavow an unfavorable one. In short, she is in no better position now than her husband would have been had he survived the accident; and certainly he would have been bound by the verdict....