Jointa Lime Co. v. Canonie Environmental Services Corp.

Mikoll, J. Appeal from an order of the Supreme Court (Dier, J.), entered November 19, 1992 in Warren County, [660] which, inter alia, granted a motion by defendant Canonie Environmental Services Corporation to dismiss the complaint. Plaintiff seeks to recover unpaid sales tax which it contends are due it for the sale of stone and topsoil to defendant Canonie Environmental Services Corporation (hereinafter defendant). Plaintiff had previously secured a judgment of $393,522.94 against defendant for the topsoil and stone it had sold defendant, which was satisfied. Plaintiff’s complaint alleges that it had paid the sales tax due under the contract to the State and now seeks reimbursement from defendant. Supreme Court denied plaintiff’s motion for summary judgment and granted defendant’s motion to dismiss the complaint. This appeal ensued. There should be an affirmance. Plaintiff’s contention that the obligation to collect sales tax from defendant is a separate obligation, distinct from the contract of sale sued on in its prior action and collectible in a separate action, has not been made out. The record indicates that plaintiff sought recovery in its prior action for the cost of soil delivered to defendant together with the sales tax due. The invoices supplied in the prior action indicate that both cost of soil and sales taxes computed thereon were being billed to defendant. The court found the amount due plaintiff to be $394,894.25 plus interest. Plaintiff did not appeal the judgment or attempt to resettle it and has now lost its right to appeal the judgment or to seek damages other than what it was granted (see, Matter of Sanchez v New York State Tax Commn., 112 AD2d 487). The prior judgment is res judicata as to all matters that were litigated therein or could have been decided in the prior lawsuit. Plaintiff is collaterally estopped in this action from revisiting the issues decided previously (see, Ryan v New York Tel. Co., 62 NY2d 494, 500). Weiss, P. J., Yesawich Jr. and Crew III, JJ., concur. Ordered that the order is affirmed, with costs to defendant Canonie Environmental Services Corporation.