Molino v. County of Putnam

Appellate Division of the Supreme Court of New York

Molino v. County of Putnam

35 A.D.2d 578, 314 N.Y.S.2d 341, 1970 N.Y. App. Div. LEXIS 4010

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

DecidedJuly 20, 1970

StatusPublished

This text of 35 A.D.2d 578 (Molino v. County of Putnam) 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

Molino v. County of Putnam, 35 A.D.2d 578, 314 N.Y.S.2d 341, 1970 N.Y. App. Div. LEXIS 4010 (N.Y. Ct. App. 1970).

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Opinion

[579]*579No opinion. Rabin, Brennan and Benjamin, JJ., concur; Christ, P. J., concurs in dismissal of appeal from the order of March 31, 1970, but otherwise dissents and votes to reverse the order of April 1, 1970, and to deny the motions to amend, with the following memorandum, in which Hopkins, J., concurs: On a prior appeal, we squarely held that the defense of res judicata was not available to the defendant Prodoti in this action because the instant plaintiff was not a party or in privity with the defendant in the litigation which resulted in the prior judgment (Molino v. County of Putnam, 30 A D 2d 929). Nothing said or suggested in Schwartz v. Public Administrator of County of Bronx (24 N Y 2d 65) imp airs the basis of our previous determination. It was then and is now the law that before collateral estoppel may be used against a party, that party, or one in privity with him, must have had at least one opportunity to litigate the issues involved. The instant plaintiff was not a party to the prior litigation. We have unequivocally held in our prior determination that she was not in privity with the defendant in that prior litigation. If we erred on the question of privity, there is a forum available to correct that error, but Special Term is not that forum. The second order appealed from should be reversed and motions denied.

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[579]*579No opinion. Rabin, Brennan and Benjamin, JJ., concur; Christ, P. J., concurs in dismissal of appeal from the order of March 31, 1970, but otherwise dissents and votes to reverse the order of April 1, 1970, and to deny the motions to amend, with the following memorandum, in which Hopkins, J., concurs: On a prior appeal, we squarely held that the defense of res judicata was not available to the defendant Prodoti in this action because the instant plaintiff was not a party or in privity with the defendant in the litigation which resulted in the prior judgment (Molino v. County of Putnam, 30 A D 2d 929). Nothing said or suggested in Schwartz v. Public Administrator of County of Bronx (24 N Y 2d 65) imp airs the basis of our previous determination. It was then and is now the law that before collateral estoppel may be used against a party, that party, or one in privity with him, must have had at least one opportunity to litigate the issues involved. The instant plaintiff was not a party to the prior litigation. We have unequivocally held in our prior determination that she was not in privity with the defendant in that prior litigation. If we erred on the question of privity, there is a forum available to correct that error, but Special Term is not that forum. The second order appealed from should be reversed and motions denied.

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Bluebook (online)

35 A.D.2d 578, 314 N.Y.S.2d 341, 1970 N.Y. App. Div. LEXIS 4010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molino-v-county-of-putnam-nyappdiv-1970.