Taylor v. Pescatore

Jun 18, 1984
Versions:102 A.D.2d 867
477 N.Y.S.2d 41
1984 N.Y. App. Div. LEXIS 19073

— In an action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Kings County (Kartell, J.), dated July 26, 1983, which denied their motion for partial summary judgment against defendants Albert Pescatore and Edward Casulli, doing business as Apec Television, Inc., on the issue of damages, based upon a claim of collateral estoppel, arising out of an inquest against a defaulting codefendant. H Order affirmed, with costs. | An assessment of damages against a defaulting defendant may not be used to collaterally estop a nondefaulting codefendant. The mere fact that the codefendant had notice of the inquest does not constitute a full and fair opportunity to litigate the issue of damages (Gallivan v Pucello, 38 AD2d 876; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 71; B.R. DeWitt, Inc. v Hall, 19 NY2d 141, 145; Card v Polito, 55 AD2d 123). Rubin, J. P., Boyers, Lawrence and Eiber, JJ., concur.