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Geraci v. Bauman, Greene Kunkis

Appellate Division of the Supreme Court of New York, First Department
Mar 12, 1991
171 A.D.2d 454 (N.Y. App. Div. 1991)

Opinion

March 12, 1991

Appeal from the Supreme Court, New York County (C. Beauchamp Ciparick, J.).


Plaintiff, while employed as a driver for an airport limousine service, drove his bus into the rear of a U.S. Postal Service truck. In a consolidated action tried in the United States District Court, in which plaintiff's employer, but not plaintiff, was named as a party, a jury verdict was returned in favor of the United States finding that the accident was solely attributable to the negligence of the plaintiff.

Plaintiff subsequently commenced this action for money damages for legal malpractice allegedly committed by the defendant law firm in failing to timely commence and prosecute a personal injury action on plaintiff's behalf arising out of the same accident. Defendant's motion for summary judgment was granted on the ground that the doctrine of collateral estoppel barred plaintiff from relitigating the issue of his own negligence, and that consequently he was unable to establish a key element of legal malpractice.

In an action for legal malpractice, a plaintiff is required to prove that "but for" the negligence of his attorney, he could have recovered damages in the underlying action (McAleenan v Massachusetts Bonding Ins. Co., 232 N.Y. 199; Mendoza v Schlossman, 87 A.D.2d 606; Larson v Crucet, 105 A.D.2d 651). To invoke the doctrine of collateral estoppel, the identical issue which is decisive of the present action must necessarily have been decided in the prior action and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (Kaufman v Lilly Co., 65 N.Y.2d 449; Schwartz v Public Adm'r of County of Bronx, 24 N.Y.2d 65, 72).

Here, plaintiff had knowledge of the material facts and was a prime witness in the federal litigation. Further, because his interests were intimately related to that of his employer in the Federal litigation, while not a party, plaintiff was in privity with a party (see, Gramatan Home Investors Corp. v Lopez, 46 N.Y.2d 481, 486), and he was collaterally bound by the judgment of the Federal Court that he was at fault for causing the accident. Thus, plaintiff could not show that "but for" the negligence of defendant he would have succeeded in his underlying action.

Concur — Sullivan, J.P., Milonas, Rosenberger, Asch and Smith, JJ.


Summaries of

Geraci v. Bauman, Greene Kunkis

Appellate Division of the Supreme Court of New York, First Department
Mar 12, 1991
171 A.D.2d 454 (N.Y. App. Div. 1991)
Case details for

Geraci v. Bauman, Greene Kunkis

Case Details

Full title:PHILIP GERACI, Appellant, v. BAUMAN, GREENE KUNKIS, P.C., Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 12, 1991

Citations

171 A.D.2d 454 (N.Y. App. Div. 1991)
567 N.Y.S.2d 224