Thiebeau v. Wahl

91 A.D.2d 869, 458 N.Y.S.2d 371, 1982 N.Y. App. Div. LEXIS 19792

Opinion

— Judgment unanimously reversed, without costs, and matter remitted to Supreme Court, Jefferson County, for a new trial, in accordance with the following memorandum: It was error for the trial court to give res judicata effect to an advisory opinion improvidently rendered by the Judge presiding over a pretrial conference. Respondent concedes that it was the understanding of the parties that the Judge’s pretrial opinion, contained in a letter, was nonbinding and merely in furtherance of settlement. Since a critical issue was involved, it was error for the trial court to decline deciding that issue on the proof. (Appeal from judgment of Supreme Court, Jefferson County, Inglehart, J. — property damage.) Present — Simons, J. P., Hancock, Jr., Callahan, Denman and Schnepp, JJ.