Undisclosed-Personal Injury: Automobile Accident Collateral Estoppel Argument Rejected – Motion To Renew/Reargue Granted

F&F# 92386A


Summary: The Appellate Division, First Department, decided two personal injury cases arising out of the same occurrence, an automobile accident. The Fitzgerald Law Firm, P.C., represented Lindgren (the injured party) from the start in the Lindgren action (in New York County), and later made a successful motion to represent Lindgren in the Villoch action (in Bronx County).

On all of the issues presented to it, the First Department ruled in favor of the plaintiff. While Lindgren’s fourth-party complaint in the Villoch action had been dismissed by the Bronx Supreme Court, his attorney in that action had not opposed the motion, and the First Department granted F&F’s motion to be substituted as counsel in that action and to renew/reargue the order dismissing the fourth-party complaint.

The First Department also rejected defendants’ argument to dismiss Lindgren’s complaint in the Lindgren action on grounds of res judicata/collateral estoppel, since there was no identity of issues and since Lindgren had not had a full and fair opportunity to address the issue of NYCHA’s liability for his own injuries in Bronx Supreme Court.

Facts: This personal injury action arose out of an automobile accident on the Bruckner Expressway at about 3:30 A.M. on June 6, 1992. Plaintiff Lindgren lost control of his vehicle, and became disabled in the left lane. A passing motorist, Villoch, stopped to help with his brother. The three caught the attention of a NYCHA police car in the right lane, and wound up in the middle lane to speak with the officer, Maher. Moments later, they were hit by a car traveling in the middle lane. Lindgren and Villoch were hospitalized for injuries. See 269 A.D.2d at 299-300.

Holdings of the Courts Below: Lindgren and Villoch originally commenced their actions in Bronx Supreme Court. However, NYCHA made a successful motion to transfer venue in the Lindgren action to New York County. As a result, Lindgren retained F&F for his claims in New York County, and another firm to defend him in Bronx County in the Villoch action. Id. at 300.

On June 11, 1998, the Supreme Court, Bronx County, granted the motion of defendants NYCHA and Maher to dismiss Lindgren’s fourth-party complaint against them in the action involving Villoch. Lindgren’s attorney at the time did not oppose this motion. NYCHA and Maher then moved to dismiss Lindgren’s complaint in the Lindgren action on grounds of res judicata/collateral estoppel, contending that Bronx Supreme Court’s dismissal of the fourth-party complaint precluded Lindgren from relitigating the issue of NYCHA’s liability for his injuries. NYCHA and Maher also moved for summary judgment in the Lindgren action. The Supreme Court, New York County, denied both motions. Id. at 300-01.

F&F, which had been representing Lindgren, then made a cross-motion before the Bronx Supreme Court to be substituted as counsel for Villoch, and to renew or reargue the order dismissing the fourth-party complaint. The Bronx Supreme Court granted F&F’s motion, but said that Lindgren had to do so in another forum. The defendants appealed the second decision of the Bronx and the decision of the New York County Supreme Court. See id. at 300-01.

The Appellate Division, First Department, affirmed the orders of both Supreme Courts. With regard to the order of the New York County Supreme Court, the court rejected the defendant’s challenge, saying that “[a]lthough some of the same facts underlie both questions, the two cases involve different elements of proof and different evidence, such that there is no identity of issues. . . . Having successfully compelled Lindgren to litigate the facts of the accident in two different venues, the NYCHA defendants cannot successfully argue that Lindgren had a fair opportunity – or indeed any opportunity – to address the issue of NYCHA’s liability for his own injuries in Bronx Supreme Court.” Id. at 301.

Also with regard to the New York County Supreme Court’s order, the court held that “summary judgment on the merits was properly denied in the Lindgren action, as numerous issues of fact exist.” Id. at 302.

The First Department held with regard to the Bronx Supreme Court’s order: “NYCHA can hardly fault F&F for attempting to intervene in the Villoch action, when it was NYCHA who first tried to use the Villoch order to preclude F&F’s claims in the Lindgren action. . . In light of the absence of argument concerning NYCHA’s unopposed motion in the Villoch action, renewal/reargument was an appropriate way to dispel any confusion as to which issues had implicitly been resolved by dismissal of the fourth-party complaint, and which issues had been left for trial in New York County. In any event, even if Bronx Supreme Court’s grant of renewal were improper, the original order dismissing Lindgren’s fourth-party complaint still would not have precluded his negligence claims on his own behalf, for the reasons previously stated.” Id.

Finally, the court declined to consider defendants’ contention that under Vehicle and Traffic Law § 1104 (which deals with emergency vehicles), Lindgren had to show “reckless disregard for the safety of others” on the part of Officer Maher, and not just ordinary negligence. The court noted that defendants had never raised this defense, but had sought summary judgment based on an absence of ordinary negligence. The court further held that even if it chose to apply the “reckless disregard” standard, it would be the role of the trier of fact to decide if Maher complied with that standard, since there were disputed factual issues. Id.