Sabatino v. Capco Trading, Inc.
| Decision Date | 30 March 2006 |
| Docket Number | 97128. |
| Citation | 2006 NY Slip Op 02418,813 N.Y.S.2d 237,27 A.D.3d 1019 |
| Parties | ANTHONY SABATINO et al., Plaintiffs, v. CAPCO TRADING, INC., et al., Defendants and Third-Party Plaintiffs-Appellants. JOHN GENO et al., Third-Party Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Ryan, J.), entered September 10, 2004 in Clinton County, which granted third-party defendants' motions for summary judgment dismissing the third-party complaint.
Plaintiffs commenced this action for personal injuries suffered when their vehicle ran into the rear of a John Deere pay loader owned by defendant Capco Trading, Inc. and operated by its sole shareholder, officer and employee, defendant Robert L. Bourgeois. Plaintiffs then commenced a separate declaratory judgment action against defendants and John Geno, Howard Crary and Howard Crary Associates (hereinafter the insurance agents) and Eagle Insurance, essentially seeking to establish that a special relationship existed between defendants and the insurance agents and, if no policy of insurance was in effect, it was due to the negligence of the insurance agents and/or because a certain policy of insurance, through Eagle, was in full force and effect at the time of the accident. The insurance agents moved to dismiss the declaratory judgment action on the basis that they owed no duty to plaintiffs and Eagle also moved to dismiss, asserting that it had validly canceled the policy. Although named as parties, defendants took no part in these proceedings. By bench decision dated June 27, 2003, Supreme Court granted the motions and dismissed plaintiffs' declaratory judgment complaint. The order confirming this decision was entered July 2, 2003, "with prejudice and on the merits."
On July 1, 2003, defendants, using the language contained in the declaratory judgment complaint, served a third-party complaint against the insurance agents and Eagle (hereinafter collectively referred to as third-party defendants). Third-party defendants then moved to dismiss the third-party complaint and Supreme Court, finding that res judicata and collateral estoppel applied with preclusive effect, granted the motions and dismissed the third-party complaint. Defendants appeal and, with respect to the issues of res judicata and collateral estoppel, make three arguments.
First, defendants argue that since both res judicata and collateral estoppel do not apply unless a final judgment has been entered in the prior action, their third-party complaint, having been served one day before the final judgment was entered, is not barred by these principles. We are unpersuaded. "The purpose of this rule is to assure finality, however, and if finality is clear, the source of it should be secondary" (Siegel, NY Prac § 444, at 751 [4th ed]). As Supreme Court's decision was rendered ...
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