Carucci v. Hanna

70 A.D.2d 772, 417 N.Y.S.2d 351, 1979 N.Y. App. Div. LEXIS 12272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1979
• Status: Published

Opinion

— Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: Defendants have appealed from an order directing them to accept service of a tardy complaint and denying their cross motion to dismiss the action pursuant to CPLR 3012 (subd [b]). Since plaintiffs have not met their burden of showing that they have a meritorious claim the order must be reversed and the action dismissed. The issue of the alleged wrongful conduct of defendants was previously litigated in Carucci v City of Utica (60 AD2d 747, mot for lv to app den 44 NY2d 814, mot for rearg den 45 NY2d 776). In that proceeding it was found that defendants’ actions in- letting certain city contracts were legal and proper. There having been a fair and full opportunity to litigate this issue by a party with whom the present plaintiffs are in strict privity they are foreclosed from relitigating the previous determination (Watts v Swiss Bank Corp., 27 NY2d 270; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65). Since plaintiffs would be collaterally estopped or "issue-precluded” (Matter of Reilly v Reid, 45 NY2d 24, 31) from claiming that defendants acted wrongfully, they are unable to demonstrate that their claim has merit. Absent such a showing, the motion to compel defendants to accept the untimely service of plaintiff’s complaint should not have been granted (Manfreda v Kendall Agency, 57 AD2d 727, 728). (Appeals from order of Oneida Supreme Court — serve complaint.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Witmer, JJ.