Scialdone v. Shah

Oct 12, 1993
Versions:197 A.D.2d 567
602 N.Y.S.2d 639
1993 N.Y. App. Div. LEXIS 9161

—In an action to recover damages for wrongful death based on psychiatric malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Barone, J.), dated March 16, 1992, *568which (1) denied her cross motion to vacate the findings of the medical malpractice panel, (2) granted the State employee defendants’ motion to amend their answer to raise the defenses of collateral estoppel and res judicata, and (3) granted summary judgment in favor of the State employees, and the defendants Pyramid Construction Co., Majestic Construction Co., Harvey A. Coleman, and Martin M. Butwin cross-appeal from so much of the same order as denied their motion for summary judgment.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Contrary to the plaintiff’s argument, the Supreme Court properly granted the defendant State employees’ motion which was to amend their answer to include the defenses of res judicata and collateral estoppel. The issue of the State employees’ malpractice was necessarily decided in the prior Court of Claims action (see, Scialdone v State of New York, 197 AD2d 568 [decided herewith]; Kaufman v Lilly & Co., 65 NY2d 449, 455; Matter of Kasten v Zoning Bd. of Appeals, 47 AD2d 766, 767). Thus, the State employees were entitled to summary judgment.

The parties’ remaining contentions are without merit. Thompson, J. P., Ritter, Santucci and Joy, JJ., concur.