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McNamee Const. v. City of New Rochelle

Appellate Division of the Supreme Court of New York, Second Department
Mar 24, 2009
60 A.D.3d 919 (N.Y. App. Div. 2009)

Opinion

No. 2008-01847.

March 24, 2009.

In an action to recover damages for breach of a construction contract, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 23, 2008, as granted that branch of the motion of the defendants third-party defendants which was for summary judgment dismissing its claim for common-law indemnification on the ground of res judicata.

Wilson, Elser, Moskowitz, Edelman Dicker, LLP, White Plains, N.Y. (Peter A. Meisels and Lalit K. Loomba of counsel), for defendant third-party plaintiff-appellant.

Gogick, Byrne O'Neill, LLP, New York, N.Y. (John M. Rondello of counsel), for defendants third-party defendants-respondents.

Before: Mastro, J.P., Covello, Eng and Leventhal, JJ.


Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants third-party defendants which was for summary judgment dismissing the third-party claim for common-law indemnification on the ground of res judicata is denied.

Under the doctrine of res judicata, or claim preclusion, "a judgment on the merits by a court of competent jurisdiction is res judicata and `forecloses a party from relitigating a cause of action which was the subject matter of a former lawsuit or from raising issues or defenses that might have been litigated in the first suit'" ( Sherman v Ansell, 207 AD2d 537, 537, quoting Chisholm-Ryder Co. v Sommer Sommer, 78 AD2d 143, 144; see Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404-405).

Here, the Supreme Court should not have awarded summary judgment to the defendants third-party defendants dismissing the third-party claim for common-law indemnification on the ground of res judicata. That claim is not res judicata insofar it pertains to new allegations in the amended complaint ( see Somma v Somma, 19 AD3d 477, 478).


Summaries of

McNamee Const. v. City of New Rochelle

Appellate Division of the Supreme Court of New York, Second Department
Mar 24, 2009
60 A.D.3d 919 (N.Y. App. Div. 2009)
Case details for

McNamee Const. v. City of New Rochelle

Case Details

Full title:McNAMEE CONSTRUCTION CORP., Plaintiff, v. CITY OF NEW ROCHELLE, Defendant…

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

Date published: Mar 24, 2009

Citations

60 A.D.3d 919 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 2339
875 N.Y.S.2d 580