WOODSON WOODSON v. Mbaye Thiam, Defendant. (1999)

Supreme Court, Appellate Division, First Department, New York.

Zachary WOODSON, an Infant, by His Mother and Natural Guardian, Tracy WOODSON, et al., Plaintiffs-Appellants, v. MENDON LEASING CORP., Defendant-Respondent, Mbaye Thiam, Defendant.

Decided: March 09, 1999

Before ROSENBERGER, J.P., WALLACH, RUBIN and ANDRIAS, JJ.

Barry Siskin, for Plaintiffs-Appellants. Frederick M. Molod, for Defendant-Respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 25, 1998, which denied plaintiffs' motion for summary judgment against defendant Mendon Leasing Corp., unanimously affirmed, without costs.

Having previously prevailed upon their argument that Mendon was not a party to the default judgment against John Densby and that the action as against Mendon had been severed, thus enabling Mendon to conduct discovery and litigate the issues, plaintiffs are judicially estopped from now arguing that the default judgment against Densby should be given res judicata and collateral estoppel effect against Mendon (see, Madden v. Corey, 251 A.D.2d 257, 675 N.Y.S.2d 52). In any event, Mendon was not in privity with Densby, and did not have a full and fair opportunity to litigate either the issues of liability or damages (see, Frolish v. Ryder Truck Rental, Inc., 63 A.D.2d 799, 404 N.Y.S.2d 929).

MEMORANDUM DECISION.

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