Opinion
Submitted October 20, 1999
November 30, 1999
In two related actions to recover damages for personal injuries, Christopher Mitchell, a plaintiff in Action No. 2, appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 9, 1998, as denied that branch of his motion which was, in effect, for summary judgment dismissing the counterclaim asserted against him in that action.
Richard J. Inzerillo, P.C., Smithtown, N.Y. (Daniel P. Gregory of counsel), for appellant.
GUY JAMES MANGANO, P.J., DAVID S. RITTER, DANIEL W. JOY, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, and that branch of the appellant's motion, in effect, for summary judgment dismissing the counterclaim asserted against him in Action No. 2 is granted.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the appellant's motion which was, in effect, for summary judgment dismissing the counterclaim asserted against him in Action No. 2 on the ground that it was barred by the doctrine of collateral estoppel. Although the appellant's motion was not made within 120 days of the filing of the note of issue, he demonstrated good cause for his delay in making the motion ( see, 3212 N.Y.CPLR[a]). Additionally, it is clear that the doctrine of collateral estoppel ( see generally, Mahl v. Citibank, 234 A.D.2d 348) bars the counterclaim against the appellant in Action No. 2 ( see, Aurora v. Ford Motor Credit Corp., 260 A.D.2d 417 [2d Dept., Apr. 12, 1999]), and therefore the purposes of CPLR 3212(a) are not served by denial of the requested relief ( see, Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778).
MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.