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KIMBERLY L. ACKMAN, PLAINTIFF–APPELLANT -RESPONDENT, v. MARK HABERER, DEFENDANT–RESPONDENT–APPELLANT.
MEMORANDUM AND ORDER
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.
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 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 A.D.2d 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.
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 13–00551
Decided: November 15, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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