Opinion
October 5, 2000.
Order, Supreme Court, New York County (Stephen Crane, J.), entered April 1, 1999, which, to the extent appealed from, denied plaintiff's motion for summary judgment on its cause of action for restitution, unanimously affirmed, without costs.
Ludwig A. Saskor, for plaintiff-appellant.
Tedd Blecher, for defendant-respondent.
Before: Mazzarelli, J.P., Ellerin, Wallach, Rubin, Saxe, JJ.
Plaintiff contends that because it was determined in a prior action that clients of defendant, an attorney, converted plaintiff's funds, plaintiff is now entitled to restitution of those funds from defendant. However, because defendant was neither a party, nor in privity with a party to the prior action, he is not collaterally estopped from litigating his liability for restitution of the converted funds. Moreover, factual issues unresolved in the prior action, respecting whether defendant's receipt of the disputed funds from his clients was justified by his retainer agreement and whether defendant was a knowing participant in the scheme to defraud plaintiff, precluded a grant of summary judgment against defendant, determination of such issues being essential to any finding that defendant received the funds in question under circumstances in which it was "against good conscience for the defendant to keep the money" (Schank v. Schuchman, 212 N.Y. 352, 358;see also, Parsa v. State, 64 N.Y.2d 143, 148; Fed. Ins. Co. v. Groveland State Bank, 37 N.Y.2d 252, 258).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.