Opinion
October 20, 1998
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Since the complaint in the main action does not sound exclusively as one for breach of contract, but premises the right to recovery as well upon an independent negligence theory, defendant and third-party plaintiff managing agent may assert a claim for contribution against third-party defendant Landmark Commission ( see, Crosby v. Ogden Servs Corp., 236 A.D.2d 220). The Landmark Commission may not further litigate the issue of whether it duly filed an historic designation for the subject property since we addressed this issue dispositively in a related CPLR article 78 proceeding, Matter of Rudey v. Landmarks Preservation Commn. ( 182 A.D.2d 61, 63, aff'd 82 N.Y.2d 832). Relitigation by the Landmark Commission is now barred by the doctrine of collateral estoppel since the issue has already been fully and fairly litigated and thereafter finally decided against the Commission.
Concur — Lerner, P.J., Sullivan, Rosenberger, Ellerin and Rubin, JJ.