        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1059
CA 13-00551
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


KIMBERLY L. ACKMAN,
PLAINTIFF-APPELLANT-RESPONDENT,

                      V                             MEMORANDUM AND ORDER

MARK HABERER, DEFENDANT-RESPONDENT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-APPELLANT-RESPONDENT.

HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and   cross appeal from an order of the Supreme Court, Erie
County (John L.   Michalski, A.J.), entered July 24, 2012. The order
denied both the   motion of defendant to dismiss the complaint and the
cross motion of   plaintiff for summary judgment on the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting plaintiff’s cross motion
for summary judgment on the complaint in the amount of $75,000 and as
modified the order is affirmed without costs.

     Memorandum: This is the second of two personal injury actions
commenced by plaintiff, both of which arise out of an accident
involving the collision of two snowmobiles. Plaintiff was the
passenger on defendant’s snowmobile, and she previously sued only the
driver of the other snowmobile. Notably, defendant was impleaded as a
third-party defendant in the prior action. Plaintiff, however, did
not seek to assert a direct claim against him until she made a
postverdict motion for that relief, after the jury returned a verdict
in the amount of $150,000, with an apportionment of liability of 50%
each to the driver of the other snowmobile and to the defendant
herein. Supreme Court denied that motion, and plaintiff thereafter
commenced this action. Plaintiff appeals and defendant cross-appeals
from an order that denied both defendant’s motion to dismiss the
complaint and plaintiff’s cross motion for summary judgment on the
complaint in the amount of $75,000.

     Addressing first the cross appeal, we reject defendant’s
contention that the court erred in denying his motion to dismiss the
complaint on the ground that plaintiff’s action is barred by, inter
alia, res judicata. “ ‘The doctrine of res judicata operates to
preclude the reconsideration of claims actually litigated and resolved
                                 -2-                          1059
                                                         CA 13-00551

in a prior proceeding, as well as claims for different relief against
the same party which arise out of the same factual grouping or
transaction, and which should have or could have been resolved in the
prior proceeding’ ” (Ippolito v TJC Dev., LLC, 83 AD3d 57, 71). Here,
while plaintiff could have asserted a direct claim against defendant
in the prior action (see e.g. CPLR 1009), “res judicata, or claim
preclusion, is . . . inapplicable, for the basic reason that the
plaintiff never asserted any claim against this defendant” (Seaman v
Fichet-Bauche N. Am., 176 AD2d 793, 794). Moreover, “[t]he fact that
the plaintiff sued one tort[]feasor does not automatically preclude
[her] from suing another tort[]feasor later” (id. at 794-795; see CPLR
3002 [a]). We also reject defendant’s contention that this action is
barred by the doctrine of judicial estoppel inasmuch as plaintiff is
not in this action adopting a position contrary to a position assumed
in the prior action (see Kilcer v Niagara Mohawk Power Corp., 86 AD3d
682, 683). We have considered the other grounds asserted by defendant
in support of his motion and conclude that they are without merit.

      With respect to plaintiff’s appeal, we agree that plaintiff is
entitled to summary judgment in the amount sought in the complaint
based on the doctrine of collateral estoppel. We therefore modify the
order accordingly. “The doctrine of collateral estoppel precludes a
party from relitigating ‘an issue which has previously been decided
against him in a proceeding in which he had a fair opportunity to
fully litigate the point’ ” (Kaufman v Eli Lilly & Co., 65 NY2d 449,
455, quoting Gilberg v Barbieri, 53 NY2d 285, 291). “The party
seeking the benefit of collateral estoppel has the burden of
demonstrating the identity of the issues in the present litigation and
the prior determination, whereas the party attempting to defeat its
application has the burden of establishing the absence of a full and
fair opportunity to litigate the issue in the prior action” (id. at
456). Here, the issues are identical because in the prior action
defendant was required to defend against the claim that he was
negligent in the operation of his snowmobile and that his negligence
was a proximate cause of this accident. Moreover, he had a full and
fair opportunity to litigate those issues in the prior action and was
in no way limited by virtue of the fact that he was a third-party
defendant as opposed to a direct defendant. Specifically, CPLR 1008
grants to a third-party defendant all of the rights a direct defendant
has to defend against a plaintiff’s claims, including the full rights
of discovery afforded by CPLR article 31 (see generally Cogan v
Madeira Assoc., 1 AD3d 1066, 1067). Given that defendant had a full
and fair opportunity to litigate the negligence claim against him in
the prior action as well as to contest the value of plaintiff’s
injuries, plaintiff is entitled to summary judgment (see generally
Fofana v 41 W. 34th Street, LLC, 71 AD3d 445, 448, lv denied 14 NY3d
713).




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
