Baten v. Northfork Bancorporation, Inc.Baten v. Northfork Bancorporation, Inc.
Ordered that the appeal from so much of the order as granted that branch of the motion of the defendant Riggs Construction Company, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, without costs or disbursements, as the appellant is not aggrieved thereby (see Mixon v TBV, Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, without costs or disbursements, that branch of the motion of the defendant Riggs Construction Company which was for summary judgment dismissing the cross claims of the defendants Northfork Bancorporation, Inc., a division of Capital One Financial Corporation, N.A., and Capital One Financial Corporation, N.A., as successor to Westbury Savings and Loan Association, for contribution and common-law indemnification, is denied, and that branch of the appellants’ cross motion which was to convert their cross claims for contribution and common-law indemnification into a third-party action is granted.
Following hearings in the plaintiff’s workers’ compensation matter, a Workers’ Compensation Law Judge determined that the defendant Riggs Construction Company, Inc. (hereinafter Riggs), rather than nonparty GM Construction and Renovations, was the plaintiff’s employer, and awarded benefits to the plaintiff. Riggs appealed the determination, and the Workers’ Compensation Board affirmed. The defendants Northfork Bancorporation, Inc., a division of Capital One Financial Corporation, N.A., and Capital One Financial Corporation, N.A., as successor to Westbury Savings and Loan Association (hereinafter collectively Capital One), were not notified of the proceedings.
Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue . . . raised in a prior action or proceeding and decided against that party or those in privity” with it (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). In determining whether such privity between the parties exists, “courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances” (Buechel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; see Chambers v City of New York, 309 AD2d 81, 86 [2003]).
Under the particular circumstances of this case, Capital One should not have been precluded from litigating the issue of whether Riggs was the plaintiff’s employer. While Capital One is now taking the same position advanced by Riggs in the former proceedings, i.e., that Riggs was not the plaintiff’s employer, nothing in the relationship between Riggs and Capital One, who are adversaries in the current proceeding, supports the Supreme Court’s conclusion that Capital One’s interests here are conditioned on, or derivative of, Riggs’s interests in the workers’ compensation proceedings (cf. D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). Thus, since Capital One is not in privity with Riggs, and Capital One “was not afforded an opportunity to cross-examine witnesses or present evidence at the prior hearing[s]” (Liss v Trans Auto Sys., 68 NY2d 15, 22 [1986]), the workers’ compensation determination should not have been given preclusive effect as to Capital One in the current action (see Matter of Juan C. v Cortines, 89 NY2d 659, 672 [1997]; Singh v Metropolitan Constr. Corp., 244 AD2d 328 [1997]; Rifkin v Dan’s Supreme Supermarket, 198 AD2d 487 [1993]; Fraser v Brunswick Hosp. Med. Ctr., 150 AD2d 754 [1989]).
Although there is no longer a direct action pending against Riggs, claims for indemnification and contribution may be maintained in a third-party action (see
Capital One’s remaining contention is without merit.
Covello, J.P., Eng, Chambers and Miller, JJ., concur.