Opinion
2002-09677.
Argued October 21, 2003.
November 24, 2003.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Burke, J.), entered September 27, 2002, which denied their pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7).
Guararra Zaitz, New York, N.Y. (Michael J. Guararra of counsel), for appellants.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Peter J. Clines of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' assertion, the holding in an underlying declaratory judgment action ( see Campanelli v. Flushing Ultrasound Servs., 287 A.D.2d 428) did not collaterally estop the County of Nassau from seeking damages against the defendants for breach of contract for [*2]failure to provide a defense and indemnification or to procure liability insurance. The defendants failed to demonstrate that the issues were identical ( see State of New York v. County of Sullivan, 43 N.Y.2d 815; cf. Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349-350). Further, the County properly set forth causes of action alleging breach of contract. The fact that it is statutorily obligated to defend and indemnify the physician ( see General Municipal Law § 50-d) does not bar it from seeking to enforce its contract with Flushing Ultrasound, Inc. ( see generally Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 562-563; Kinney v. Lisk Co., 76 N.Y.2d 215).
We decline to address the defendants' contention, raised for the first time on appeal ( see Matter of ELRAC, Inc. v. Edwards, 270 A.D.2d 414, 415), that the causes of action asserted against the defendant Adele M. Romano, an alleged officer, manager, and shareholder of Flushing Ultrasound, Inc., should be dismissed because she cannot be held personally liable on a contract entered into on behalf of the corporation.
PRUDENTI, P.J., ALTMAN, SMITH and CRANE, JJ., concur.