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

79
CA 13-01333
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


MARK D. PLUMLEY AND TINA A. PLUMLEY,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ERIE BOULEVARD HYDROPOWER, L.P.,
DEFENDANT-RESPONDENT.


AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (JOHN D. CONNERS OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

HISCOCK & BARCLAY, LLP, SYRACUSE (JOHN M. NICHOLS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (Norman
W. Seiter, Jr., J.), entered September 25, 2012. The order, among
other things, dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs appeal from an order that, inter alia,
granted that part of defendant’s motion seeking to dismiss the
complaint on the ground that the action was barred by collateral
estoppel (see CPLR 3211 [a] [5]), and on the further ground that,
pursuant to CPLR 3211 (c), defendant was entitled to summary judgment
because there was no material issue of fact to be tried. We agree
with plaintiffs that Supreme Court erred in determining that the
action was barred by collateral estoppel. Collateral estoppel
“applies only ‘if the issue in the second action is identical to an
issue which was raised, necessarily decided and material in the first
action, and the plaintiff had a full and fair opportunity to litigate
the issue in the earlier action’ ” (City of New York v Welsbach Elec.
Corp., 9 NY3d 124, 128, quoting Parker v Blauvelt Volunteer Fire Co.,
93 NY2d 343, 349). We conclude that the primary issue in this action
was not previously litigated and decided against plaintiffs in a prior
action. We further conclude, however, that the court, in treating
defendant’s motion as one for summary judgment pursuant to CPLR 3211
(c), properly granted the motion. Defendant met its burden of
establishing that it was under no obligation to include plaintiffs in
a “global” settlement agreement that defendant reached with other
parties situated similarly to plaintiffs. In opposition, plaintiffs
established only that they had a “mere agreement to agree” with
defendant, which “is unenforceable” (Joseph Martin, Jr., Delicatessen
                                 -2-                            79
                                                         CA 13-01333

v Schumacher, 52 NY2d 105, 109; see Willmott v Giarraputo, 5 NY2d 250,
253). Thus, it was insufficient to defeat defendant’s motion (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
