Kossover v. Trattler

OPINION OF THE COURT Gulotta, J. On or about January 2,1975 defendant Arnold Trattler, a physician, commenced an action against the plaintiffs in the District Court, Nassau County, to recover the sum of $750 for professional services rendered to plaintiff Harold Kossover “on or about the 21st day of May, 1974”, with interest “from May 21, 1974”. A default judgment was entered in that action against the Kossovers on February 7, 1975. On March 22, 1976 plaintiffs commenced the instant action against Dr. Trattler and North Shore Hospital for medical malpractice allegedly committed during the period “between May 27, 1974 and June 22nd, 1974”, in which issue was joined by the individual defendant on October 27, 1976. The defendant doctor thereafter moved, [611] inter alia, for leave to amend his answer to assert the affirmative defenses of res judicata and collateral estoppel, whereupon the plaintiffs cross-moved for leave to serve a supplemental bill of particulars. From the denial of his motion to amend his answer and for summary judgment (104 Mise 2d 424), the defendant doctor appeals. We affirm. It is axiomatic that in order to invoke the principles of res judicata and/or collateral estoppel as a defense to an action, it must be established, inter alia, that “the issue in the prior action is identical [to], and thus decisive, of [the] issue [to be determined] in the current action” (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485). Thus, as was more fully expressed by Chief Judge Cardozo in his landmark opinion in Schuylkill Fuel Corp. v Nieberg Realty Corp., (250 NY 304, 306-307): “A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first” (emphasis supplied). In our view, the necessary identity of issues is lacking in the case at bar. Here, according to the complaint in the prior action, the services upon which the doctor sued and recovered a judgment were rendered “on or about the 21st day of May, 1974”, which is the same date from which the interest was designated to run. In fact, no other date was even mentioned in that action. The appellant, in our view, should be bound by this formal assertion, and should not now be permitted to argue that the judgment obtained in the District Court was for services rendered at any other time. Accordingly, when the plaintiffs commenced this action to recover damages resulting from the services rendered on and after May 27, 1974, we believe that an entirely new claim was asserted, as to which there was and could be no common issue. Thus, assuming the rule to be that a default judgment in favor of a doctor against his patient for services rendered bars a subsequent action for medical malpractice arising out of the rendition of the same services (see Blair v Bartlett, 75 NY 150; Gates v Preston, 41 NY [612] 113; see, also, Tillotson v Shulman, 73 AD2d 688), we nevertheless believe that the principles of res judicata and collateral estoppel can have no application where, as here, the underlying services and, perforce, the issues necessarily determined in the prior action were in no respect the same (cf. Blair v Bartlett, supra). Since the prior action, by its terms, at most determined the value of services rendered up to and including May 21, 1974, the plaintiffs, in all fairness, should not be precluded thereby from presently litigating the question of malpractice regarding the rendition of services thereafter. In short, appellant has failed to demonstrate the necessary identity of issues to preclude the later action (see Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485, supra; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65). As the proposed amendment was patently insufficient, that branch of the appellant’s motion which was for leave to serve an amended answer was properly denied (see Etkin v Marcus, 74 AD2d 633; Molino v County of Putnam, 30 AD2d 929). For the identical reason, the branch of his motion which was for accelerated judgment based upon the foregoing amendment was likewise properly denied.