Leung v. Suffolk Plate Glass Co., Inc.

• Citation: 911 N.Y.S.2d 376,78 A.D.3d 663
• Parties: Laurence LEUNG, etc., et al., respondents, v. SUFFOLK PLATE GLASS CO., INC., et al., appellants, et al., defendants.
• Decision Date: 03 November 2010
• Court: New York Supreme Court Appellate Division

911 N.Y.S.2d 376

78 A.D.3d 663

Laurence LEUNG, etc., et al., respondents,

v.SUFFOLK PLATE GLASS CO., INC., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 3, 2010.

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (William C. Lawlor, Robert C. Baxter, and Dennis Heffernan of counsel), for appellants.

Gaffin & Mayo, P.C., New York, N.Y. (Sarah D. Trimming of counsel), for respondents.

FRED T. SANTUCCI, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for wrongful death, etc., the defendants Suffolk Plate Glass Co., Inc., and C. Klingenberger appeal from an order of the Supreme Court, Queens County (Grays, J.), entered September 25, 2009, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, with leave to renew after the completion of discovery.

ORDERED that the order is affirmed, with costs.

A vehicle owned by the defendant U-Haul Titling, LLC, and operated by the defendant Ionis Kokiasmenos (hereinafter the Kokiasmenos vehicle) collided with a vehicle operated by Charles Klingenberger, sued herein as C. Klingenberger, and owned by the defendant Suffolk Plate Glass Co., Inc. (hereinafter SPGC). The Kokiasmenos vehicle then crashed into the front of an Arby's restaurant. The plaintiffs' decedent was inside the Arby's restaurant at the time of the incident, and died as a result of the accident.

SPGC and Klingenberger (hereinafter together the appellants) together moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiffs opposed the motion, but the appellants' codefendants did not. The Supreme Court denied the motion, and we affirm.

"The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling" ( Mahler v. Campagna, 60 A.D.3d 1009, 1011, 876 N.Y.S.2d 143; see Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199, 868 N.Y.S.2d 563, 897 N.E.2d 1044; Buechel v. Bain, 97 N.Y.2d 295, 303-304, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051; Altegra Credit Co. v. Tin Chu, 29 A.D.3d 718, 816 N.Y.S.2d 140). The party seeking the benefit of the doctrine of collateral estoppel bears the burden of establishing that the identical issue was necessarily decided in the prior action, and "the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunityto contest the prior determination" ( Mahler v. Campagna, ...