PIRES v. Galveston Wharves, etc., et al., Defendants-Respondents.

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

S.M. PIRES, et al., Plaintiffs, v. FROTA OCEANICA BRASILEIRA, S.A., Defendant-Appellant, Fernando Frota, et al., Defendants, Galveston Wharves, etc., et al., Defendants-Respondents.

Decided: June 24, 1997

Before SULLIVAN, J.P., and MILONAS, WILLIAMS and TOM, JJ. Thomas F. Stiles, for defendant-appellant. Thomas V. McMahon, for defendants-respondents.

Order, Supreme Court, New York County (Edward Greenfield, J.), entered on or about April 5, 1996, which granted defendants-respondents' motion to vacate a judgment of same court and Justice entered on or about May 19, 1995 against them and in favor of defendant-appellant, unanimously affirmed, without costs.

Although in Pires v. Frota Oceanica Brasileira, 214 A.D.2d 306, 625 N.Y.S.2d 13 we held that plaintiffs' action against defendants-respondents herein was to be dismissed on the ground of res judicata, defendant-appellant argues that the earlier fact finding in the main action against defendants-respondents should be binding as to defendant-appellant's claim against them for indemnification on its liability to plaintiffs for maintenance and cure (see, Pires v. Frota Oceanica Brasileira, decided herewith).   The IAS court properly rejected this contention in the present circumstances because the judgment in favor of plaintiffs was the basis for the judgment on the indemnification cross-claim (cf., Springer v. Keith Clark Publ. Co., 191 A.D.2d 922, 594 N.Y.S.2d 904, lv dismissed 82 N.Y.2d 706, 601 N.Y.S.2d 585, 619 N.E.2d 663).   Further, the trial court conceded it was mistaken as to the nature of defendant-appellant's stipulation with defendants-respondents and that that misunderstanding was incorporated into the resulting judgment, so as to warrant vacatur thereof (see, Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 234 A.D.2d 49, 650 N.Y.S.2d 207).   We have considered defendant-appellant's remaining argument and find it to be without merit.