Terman v. Gonta

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 27, 2004, which denied defendants’ motion for summary judgment, unanimously affirmed, without costs. Defendants, seeking the benefit of collateral estoppel, failed to demonstrate that the decisive issue had necessarily been decided in the prior subrogation action against plaintiffs, that plaintiffs were in privity with the insurance company, and that plaintiffs, as the party against whom the prior determination was to be asserted, had a “full and fair opportunity” to contest the prior determination (see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]). Plaintiffs had no opportunity to litigate the property damage subrogation action because they lacked control over, or a financial interest in, that [161] action (see e.g. Anderson v Snyder Tank Corp., 44 AD2d 761, 762 [1974]). Concur—Mazzarelli, J.P., Marlow, Williams, Sweeny and Malone, JJ.