Werth v. Martin

Order unanimously affirmed, with costs. Memorandum: 'The record shows that the issues which plaintiffs seek to have resolved in this action were fully litigated by them on their complaint against defendant A. E. Albert and Sons, Inc. (Albert), made to the Commissioner of the New York State Department of Agriculture and Markets pursuant to subdivision 3 of section 246 and sections 247 and 251-b of the Agriculture and Markets Law, and determined by him. Plaintiffs did not seek a review of that determination. 862 Plaintiffs are collaterally estopped by that determination from pursuing this action (Osterhoudt v Rigney, 98 NY 222, 234; Bernstein v Birch Wathen School, 71 AD2d 129; Walsh v Pluess-Staufer [Northamerican], 67 Misc 2d 885; and see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 69, 71; Matter of Evans v Monaghan, 306 NY 312, 323). Although defendant Martin was not a party to the administrative proceedings, he testified at length therein and admittedly was Albert’s disclosed authorized agent. Plaintiffs’ claims against Albert having been dismissed, Martin is entitled to the benefit thereof. Plaintiffs are equally estopped by the administrative proceedings from asserting the second and third causes of action in the proposed amended complaint, and the motion for leave to serve that complaint was properly denied. (Appeal from order of Steuben Supreme Court—dismiss complaint.) Present— Dillon, P. J., Cardamone, Simons, Doerr and Witmer, JJ.