108 A.D.2d 979 | N.Y. App. Div. | 1985
Appeal from an order and judgment of the Supreme Court at Special Term (Pennock, J.), entered January 13, 1984 in Albany County, which granted plaintiff’s motion to dismiss defendant’s counterclaims and granted plaintiff summary judgment thereon.
Defendant’s counterclaims allege, first, the wrongful exercise of control over defendant’s personal property (the loan proceeds) by plaintiff and, second, malicious prosecution. Special Term was correct in awarding summary judgment to plaintiff on both these claims.
In support of defendant’s first counterclaim, he contends that he did not indorse any of the bank checks, which constituted a portion of the loan proceeds which the notes had secured. He claims that his signature, as it appears on the backs of the checks, was forged and that he never received any of the proceeds of the loans. However, when this matter was first before this court, we rejected this claim, noting that defendant had produced no evidence that the indorsements on the checks were forgeries or that the loan proceeds had not been received by defendant when a portion thereof was credited to other accounts which defendant had at plaintiff bank and the balance paid by cashier’s checks directly to defendant. We then granted summary judgment to plaintiff. That decision was a final judgment on the merits, conclusively establishing that consideration was received by defendant on the loans. Accordingly, our determination of this issue, as set forth in that decision, now constitutes collateral estoppel, precluding defendant from again raising the issue here (Siegel, NY Prac § 444, at 589 [1978]).
In so holding, we reject defendant’s contention that our previous judgment was not, in fact, a final one because the Court of Appeals dismissed his appeal from that decision on the ground that this court’s order did not finally determine the action. The finality of a judgment for the purposes of appealability is not the
Defendant’s second counterclaim, alleging malicious prosecution, was also properly dismissed. This counterclaim was interposed in the context of the very suit which he alleges was wrongfully brought (Wiener v Wiener, 84 AD2d 814, 815). However, a prerequisite of this cause of action is a prior termination of the objected-to suit in the injured party’s favor (id.).
Order and judgment affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.