Collins Lumber Corp. v. Ethier

Appellate Division of the Supreme Court of New York

Collins Lumber Corp. v. Ethier

157 A.D.2d 1022, 550 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 586

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 25, 1990

StatusPublished

This text of 157 A.D.2d 1022 (Collins Lumber Corp. v. Ethier) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Collins Lumber Corp. v. Ethier, 157 A.D.2d 1022, 550 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 586 (N.Y. Ct. App. 1990).

Pincite

Opinion

Casey, J. P.

Appeal from an order of the Supreme Court (Travers, J.), entered December 20, 1988 in Rensselaer County, which denied defendant Jerry J. Ethier’s motion for summary judgment dismissing the complaint against him.

In this action, plaintiff seeks to recover the cost of materials sold to defendant Jerry J. Ethier and/or defendant Ethier Construction Company, Inc. The corporate defendant defaulted and plaintiff took a default judgment against it. The affidavit of plaintiff’s vice-president, submitted as proof of damages upon the corporate defendant’s default, alleges that the materials were sold to the corporate defendant. Judgment was entered in favor of plaintiff against the corporate defendant in the amount of $18,984.48. The judgment remains unsatisfied.

The action against the individual defendant was severed from the action against the corporate defendant and was continued as a separate action. The individual defendant thereafter moved for summary judgment, claiming that plaintiff was estopped from continuing its action for materials sold to the individual defendant since it had procured the judgment against the corporate defendant by alleging that the materials were sold to the corporate defendant. Supreme Court denied the motion and this appeal ensued.

There should be an affirmance. As plaintiff points out, the allegation that the corporate defendant purchased the materials is not necessarily inconsistent with a claim that the individual defendant also purchased the materials. In any event, assuming that the causes of action against the two defendants are inconsistent, the unsatisfied judgment against the corporate defendant does not bar the claim against the individual defendant (CPLR 3002 [a]). Nor is collateral estoppel applicable here, since there has been no adjudication that the materials were purchased only by the corporate defendant and not by the individual defendant.

[1023]*1023Order affirmed, with costs. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.

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Casey, J. P.

Appeal from an order of the Supreme Court (Travers, J.), entered December 20, 1988 in Rensselaer County, which denied defendant Jerry J. Ethier’s motion for summary judgment dismissing the complaint against him.

In this action, plaintiff seeks to recover the cost of materials sold to defendant Jerry J. Ethier and/or defendant Ethier Construction Company, Inc. The corporate defendant defaulted and plaintiff took a default judgment against it. The affidavit of plaintiff’s vice-president, submitted as proof of damages upon the corporate defendant’s default, alleges that the materials were sold to the corporate defendant. Judgment was entered in favor of plaintiff against the corporate defendant in the amount of $18,984.48. The judgment remains unsatisfied.

The action against the individual defendant was severed from the action against the corporate defendant and was continued as a separate action. The individual defendant thereafter moved for summary judgment, claiming that plaintiff was estopped from continuing its action for materials sold to the individual defendant since it had procured the judgment against the corporate defendant by alleging that the materials were sold to the corporate defendant. Supreme Court denied the motion and this appeal ensued.

There should be an affirmance. As plaintiff points out, the allegation that the corporate defendant purchased the materials is not necessarily inconsistent with a claim that the individual defendant also purchased the materials. In any event, assuming that the causes of action against the two defendants are inconsistent, the unsatisfied judgment against the corporate defendant does not bar the claim against the individual defendant (CPLR 3002 [a]). Nor is collateral estoppel applicable here, since there has been no adjudication that the materials were purchased only by the corporate defendant and not by the individual defendant.

[1023]*1023Order affirmed, with costs. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.

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Bluebook (online)

157 A.D.2d 1022, 550 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-lumber-corp-v-ethier-nyappdiv-1990.