City of New York v. Caristo Construction Corp.

New York Court of Appeals

City of New York v. Caristo Construction Corp.

466 N.E.2d 143, 62 N.Y.2d 819, 477 N.Y.S.2d 603, 1984 N.Y. LEXIS 4382

CourtNew York Court of Appeals

DecidedJune 5, 1984

StatusPublished

Cited by11 cases

This text of 466 N.E.2d 143 (City of New York v. Caristo Construction Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Caristo Construction Corp., 466 N.E.2d 143, 62 N.Y.2d 819, 477 N.Y.S.2d 603, 1984 N.Y. LEXIS 4382 (N.Y. 1984).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (94 AD2d 688).

We agree that under transactional analysis, were it not for the express provision in the judgment of the United States District Court that its dismissal of respondents’ *821 “post-trial asserted claim” for contract indemnification was “without prejudice”, the final determination in the Federal action would preclude assertion of that claim in the present action under res judicata principles. The explicit “without prejudice” provision, however, saves the claim from such preclusion. To be given legal effect, the contention, now advanced by appellant, that it was error to have included this provision in the Federal judgment inasmuch as the claim for contract indemnification had never been pleaded or otherwise asserted in the Federal law suit, had to be raised on appeal or other application for correction of the asserted error in the Federal action (cf. McLearn v Cowen & Co., 48 NY2d 696, 60 NY2d 686).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (94 AD2d 688).

We agree that under transactional analysis, were it not for the express provision in the judgment of the United States District Court that its dismissal of respondents’ *821 “post-trial asserted claim” for contract indemnification was “without prejudice”, the final determination in the Federal action would preclude assertion of that claim in the present action under res judicata principles. The explicit “without prejudice” provision, however, saves the claim from such preclusion. To be given legal effect, the contention, now advanced by appellant, that it was error to have included this provision in the Federal judgment inasmuch as the claim for contract indemnification had never been pleaded or otherwise asserted in the Federal law suit, had to be raised on appeal or other application for correction of the asserted error in the Federal action (cf. McLearn v Cowen & Co., 48 NY2d 696, 60 NY2d 686).

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.

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Bluebook (online)

466 N.E.2d 143, 62 N.Y.2d 819, 477 N.Y.S.2d 603, 1984 N.Y. LEXIS 4382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-caristo-construction-corp-ny-1984.

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