Opinion
93706.
Decided and Entered: December 11, 2003.
Appeal from an order of the Supreme Court (Reilly Jr., J.), entered December 3, 2002 in Schenectady County, which, inter alia, denied defendants' motions for summary judgment dismissing the complaint.
Lawrence J. Mahar, Burnt Hills, for Flight Line Pub, Inc., appellant.
Law Office of M. Randolph Belkin, Latham (M. Randolph Belkin of counsel), for Two Argyle Place Entertainment, Inc., appellant.
Gibbons Burke P.C., Scotia (Kenneth T. Gibbons of counsel), for respondent.
Before: Crew III, J.P., Mugglin, Rose, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
Plaintiff, a passenger in a motor vehicle that was involved in an accident, brought an action against the driver, Renee Girard, who was allegedly intoxicated, and subsequently commenced this action against defendants, the owners of the bars where Girard allegedly consumed alcoholic beverages before the accident (see General Obligations Law § 11-101). The action against Girard culminated in a jury verdict assessing 60% of responsibility to plaintiff and 40% to Girard. The issue of damages in that action, however, has apparently not been finally resolved (see Gillespie v. Girard, 301 A.D.2d 1018). Defendants in the current action moved for summary judgment arguing that the jury's assessment of a total of 100% liability between the two parties in the action against Girard prevented an assessment of any liability against them in this action under the doctrines of collateral estoppel and judicial estoppel. Supreme Court denied the motions and defendants appeal.
We affirm. "The fact that the plaintiff sued one tort-feasor does not automatically preclude him from suing another tort-feasor later" (Seaman v. Fichet-Bauche N. Am., 176 A.D.2d 793, 794-795; see Pigliavento v. Tyler Equip. Corp., 233 A.D.2d 810, 811; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3002:20, at 602; cf. Hecht v. City of New York, 60 N.Y.2d 57, 62-63). The issue of the current defendants' culpability, if any, was not litigated in the earlier action and, thus, issue preclusion does not foreclose this action (see Shanley v. Callanan Indus., 54 N.Y.2d 52). Nor is the doctrine of judicial estoppel implicated since plaintiff has not framed "his pleadings in a manner inconsistent with a position taken in a prior judicial proceeding" (Kimco of N.Y. v. Devon, 163 A.D.2d 573, 574; see Shapiro v. Butler, 273 A.D.2d 657, 659). Since there is no proof that a judgment for damages has been entered and satisfied in the action against Girard, there is not yet an issue regarding election of remedies or duplicative recoveries (see CPLR 3002 [a]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3002:20, at 602).
Crew III, J.P., Mugglin, Rose and Kane, JJ., concur.
ORDERED that the order is affirmed, with costs.