Mayers v. D'Agostino

6 Citing cases

  1. Baxter v. Fulton Ice & Cube Co.

    117 Misc. 2d 634 (N.Y. Misc. 1983)

    Yet, it must be noted that this is not a case where the same parties were involved in the inquest, defendant Ohio Gear not having been a party to the inquest. The broad scope of collateral estoppel as set forth in Messinger ( supra), where the court emphasized that it was dealing with the same parties, is not necessarily applicable here (see Mayers v D'Agostino, 87 A.D.2d 519, 520). More recently, in Gilberg v Barbieri ( 53 N.Y.2d 285, 291), the Court of Appeals narrowed the concept of what is a "full and fair opportunity.

  2. Sherwyn Toppin Mktg. Consultants, Inc. v. N.Y. Liquor Auth.

    103 A.D.3d 648 (N.Y. App. Div. 2013)   Cited 27 times

    Moreover, where a party to an action or proceeding is a nominal party and played no role and did not participate, even where the party is named as a plaintiff or defendant, the doctrines of res judicata and collateral estoppel should not be applied ( see Gunzburg v. Gunzburg, 152 A.D.2d 537, 539, 543 N.Y.S.2d 474;Mayers v. D'Agostino, 87 A.D.2d 519, 520, 447 N.Y.S.2d 926affd.58 N.Y.2d 696, 458 N.Y.S.2d 904, 444 N.E.2d 1323).

  3. Baxter v. Fulton Ice & Cube Co.

    106 A.D.2d 82 (N.Y. App. Div. 1985)   Cited 9 times

    In the instant case, plaintiff had little incentive to litigate the matter strenuously since there was a strong indication that defendant Fulton Ice Cube Co. was judgment proof. Given the relative insignificance of a claim against a judgment proof defendant, plaintiff could not reasonably be expected to prosecute it with the same vigor as the action against Ohio Gear (see Mayers v. D'Agostino, 87 A.D.2d 519, 520, affd 58 N.Y.2d 696).

  4. Clemens v. Apple

    102 A.D.2d 236 (N.Y. App. Div. 1984)   Cited 5 times

    It may well be, as plaintiffs suggest, that concluding as we have has serious and adverse policy considerations in that no-fault claimants will be discouraged from proceeding in arbitration against their own insurers for medical expenses. That policy argument must, however, give way to the now firmly established principle that collateral estoppel is applicable to arbitration proceedings ( Matter of Ranni, supra). Inasmuch as the issue decided in the arbitration proceeding initiated by Clemens against his carrier is identical to that which plaintiffs seek to have resolved in their still pending negligence action, and as they clearly had a full and fair opportunity to assert their position, they are bound by the arbitrators' decision that the herniated disc condition was not causally related to the automobile accident (see Greenspan v Doldorf, 87 A.D.2d 884; Mayers v. D'Agostino, 87 A.D.2d 519, affd on other grounds 58 N.Y.2d 696; Baldwin v. Brooks, 83 A.D.2d 85; Kilduff v. Donna Oil Corp., 74 A.D.2d 562). The order should be affirmed, without costs.

  5. Metropolitan v. Cassidy

    127 Misc. 2d 641 (N.Y. Sup. Ct. 1985)   Cited 8 times

    ) Apparently, the court does not apply the Schwartz analyses and principles to situations of issue preclusion between the same parties ( supra, p 190; cf. Mayers v D'Agostino, 87 A.D.2d 519, 520; Heine v Gustafson Co., 118 Misc.2d 593, 597).

  6. Heine v. Gustafson Co.

    118 Misc. 2d 593 (N.Y. Sup. Ct. 1983)   Cited 3 times

    Defendant urges that New York has recently adopted a more liberal approach to collateral estoppel issues, "eschewing prior applications of the doctrine," citing, inter alia, the "realities of litigation" test applied in Gilberg v Barbieri ( 53 N.Y.2d 285 [enunciated in Schwartz v Public Administrator of County of Bronx, 24 N.Y.2d 65]) and the concurring opinion of Justice GIBBONS in Kossover v Trattler (82 A.D.2d, supra, at p 612), condemning application of the doctrine to default judgments (see, also, Rosenberg, Collateral Estoppel in New York, 44 St. John's L Rev 165). Schwartz and Gilberg are inapposite since the litigation here is between the same parties who were involved in the prior litigation (see Matter of American Ins. Co. [ Messinger — Aetna Cas. Sur. Co.], 43 N.Y.2d 184; Mayers v D'Agostino, 87 A.D.2d 519) and Justice GIBBONS' reasoning was not adopted by the majority in Kossover. Nevertheless, even though Gilberg's "realities of litigation" test (and the approach taken in Silver Dresses, supra), may not be available here, the traditional "necessarily" litigated test liberally applied suggests that this case, because it involves judgments entered by the clerk rather than the court, may be distinguished from the other default judgment cases discussed above, to the extent that it appears the judgments in those cases were entered by the court.