Opinion
July 20, 1970
In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from two orders of the Supreme Court, Putnam County, one dated March 31, 1970, which granted a motion by defendant County of Putnam for leave to amend its answer so as to add thereto defenses of res judicata and equitable estoppel, and the other dated April 1, 1970, which, on application of defendant Prodoti, reiterated the same relief to defendant County of Putnam and extended the same relief to defendant Prodoti. Appeal from order dated March 31, 1970, dismissed as moot, without costs. This order was superseded by the order dated April 1, 1970. Order dated April 1, 1970, affirmed, without costs. No opinion. Rabin, Brennan and Benjamin, JJ., concur; Christ, P.J., concurs in dismissal of appeal from the order of March 31, 1970, but otherwise dissents and votes to reverse the order of April 1, 1970, and to deny the motions to amend, with the following memorandum, in which Hopkins, J., concurs: On a prior appeal, we squarely held that the defense of res judicata was not available to the defendant Prodoti in this action because the instant plaintiff was not a party or in privity with the defendant in the litigation which resulted in the prior judgment ( Molino v. County of Putnam, 30 A.D.2d 929). Nothing said or suggested in Schwartz v. Public Administrator of County of Bronx ( 24 N.Y.2d 65) impairs the basis of our previous determination. It was then and is now the law that before collateral estoppel may be used against a party, that party, or one in privity with him, must have had at least one opportunity to litigate the issues involved. The instant plaintiff was not a party to the prior litigation. We have unequivocally held in our prior determination that she was not in privity with the defendant in that prior litigation. If we erred on the question of privity, there is a forum available to correct that error, but Special Term is not that forum. The second order appealed from should be reversed and motions denied.