Murray v. Sterner

• Decision Date: 22 December 1995
• Docket Number: No. 1,1
• Parties: John F. MURRAY and Enos & Sanderson Company, Inc., Respondents, v. Ralph A. STERNER and Preston Trucking Company, Appellants. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 521

636 N.Y.S.2d 521

218 A.D.2d 334

John F. MURRAY and Enos & Sanderson Company, Inc., Respondents, v. Ralph A. STERNER and Preston Trucking Company, Appellants.

(Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Dec. 22, 1995.

Damon and Morey by Sharyn Rogers, Buffalo, for Appellants.

Dixon, De Marie & Schoenborn by Joseph De Marie, Buffalo, for Respondents.

Before PINE, J.P., and LAWTON, WESLEY, CALLAHAN and DAVIS, JJ.

LAWTON, Justice:

This is an action for contribution brought by parties who were defendants in earlier actions by a driver and his passenger. In the driver's action liability was apportioned 60% to the driver and 40% to defendants. Those defendants brought the instant action for contribution to the damages recovered by the passenger against the driver and the vehicle owner. The issue to be decided on appeal is whether any of the parties to this action is collaterally estopped by earlier determinations in either of the original actions. We hold that the plaintiffs in this action are estopped but that defendants in this action are not.

The facts are not in dispute. On June 29, 1990, Ralph Sterner was driving a car owned by his employer, Preston Trucking Company (Preston Trucking), in the course of his employment. Co-employee William Enders was a passenger in the car. The Sterner car was struck in the rear by a car driven by John F. Murray and owned by Murray's employer, Enos & Sanderson Company, Inc. (Enos & Sanderson). Both Sterner and Enders were injured in the collision.

After the accident Sterner and Enders retained an attorney to commence personal injury actions. By summons and complaint dated January 17, 1991, Sterner and his wife commenced an action against Murray and Enos & Sanderson, and, at or about the same time, Enders and his wife commenced a separate action against Murray and Enos & Sanderson. Preston Trucking was not a party to either lawsuit. No third-party action (see, CPLR 1007) was commenced in the Enders lawsuit against Preston Trucking or Sterner.

The Sterner and Enders actions were joined for trial, but were not consolidated. The jury returned a verdict of $1,653,800 in favor of Enders and his wife, and a verdict of $867,700 in favor of Sterner and his wife. The jury's verdict in favor of the Sterners was reduced based on the jury's finding that Sterner was 60% responsible for causing the accident.

By summons and complaint dated April 14, 1994, Murray and Enos & Sanderson (plaintiffs) commenced the present action against Sterner and Preston Trucking (defendants). In their complaint, plaintiffs sought contribution from defendants, pursuant to CPLR 1401, in the amount of 60% of the damages awarded and paid to the Enders. Issue was joined on or about July 11, 1994. At the time defendants served their answer, they also served a demand for a verified bill of particulars, a notice of examination before trial, and a demand for statements.

By notice of motion dated July 21, 1994, plaintiffs moved to strike the demand for a bill of particulars, notice of deposition and demand for statements. Plaintiffs also moved for summary judgment. In their motion for summary judgment, plaintiffs successfully argued that the 60% finding of culpable conduct against Sterner in his own action against Murray and Enos & Sanderson collaterally estopped Sterner and Preston Trucking from contesting liability and damages in the instant action for contribution to damages awarded to the Enders. Plaintiffs also argued that Preston Trucking was liable for 60% of the verdict in the Enders action based on Vehicle and Traffic Law § 388. By order entered October 31, 1994, Supreme Court granted plaintiffs summary judgment against defendants for a sum equal to 60% of all monies that plaintiffs paid the Enders in their lawsuit. An amended judgment reflecting the court's decision was entered and defendants' subsequent motion for reargument and renewal was denied. These appeals followed.

The appeal from the order insofar as it denied reargument (see, Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5) should be dismissed; the order insofar as it denied renewal should be affirmed.

The court erred, however, in its application of the doctrine of collateral estoppel. That doctrine is applicable when (1) the identical issue was necessarily decided in a prior action and that issue is decisive in the present action and (2) the party to be precluded from litigating that issue had a full and fair opportunity to contest the prior determination (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 563 N.Y.S.2d 24, 564 N.E.2d 634; Schwartz v. Public Adm'r. of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725; Gollel v. Nassar, 206 A.D.2d 835, 615 N.Y.S.2d 199, lv. denied 85 N.Y.2d 802, 624 N.Y.S.2d 372, 648 N.E.2d 792; La Buda v. State of New York, 86 A.D.2d 692, 446 N.Y.S.2d 534; Hines v. City of Buffalo, 79 A.D.2d 218, 436 N.Y.S.2d 512).

While it could be argued that the first of those two requirements has been met in the present case (i.e., the issue of the percentage of negligence of Sterner), clearly the second requirement has not been met. Defendant Preston Trucking was not a party to the prior litigation. Likewise, while defendant Sterner was a plaintiff in one earlier case, he was not a party to the lawsuit commenced by the Enders against Murray and Enos & Sanderson. Moreover, Preston Trucking was not in privity with any party in either of the prior actions because no party can be said to have represented the interests of Preston Trucking in either prior action (see, Green v. Santa Fe Indus., 70 N.Y.2d 244, 519 N.Y.S.2d 793, 514 N.E.2d 105; Baldwin v. Brooks, 83 A.D.2d 85, 443...