Vos v. City of New York

—Order, Supreme Court, New York County (Salvador Collazo, J.), entered on or about March 11, 1994, which granted defendant-respondent’s motion for summary judgment dismissing defendant-appellant’s third-party complaint and cross-claims, unanimously reversed, on the law, without costs, the motion denied, the third-party complaint and cross-claims reinstated and the matter remanded for further proceedings in accordance herewith. Upon review of the record, we find that numerous questions of fact exist concerning the ownership of the manhole cover in question. Summary judgment is inappropriate where questions of fact exist or even where there is any doubt as to the existence of triable issues of fact (Rotuba Extruders v Ceppos, 46 NY2d 223). We reject the defendant-respondent’s collateral estoppel argument based upon a prior action against the City by a different plaintiff allegedly involving the same general area. The record does not contain either a copy of an entered judgment or conclusive proof that a judgment was ever entered in that action. The rule is clear that in order for collateral estoppel to apply there must be a valid final judgment (Zangiacomi v Hood, 193 AD2d 188, 195, citing Matter of McGrath v Gold, 36 NY2d 406, 411). Moreover, the record fails to provide any basis upon which it can be concluded, as a matter of law, that the manhole cover, which is alleged to have been the cause of plaintiff’s injuries herein was the same one as was involved in the prior action relied upon by the defendant-respondent. We have reviewed the other arguments made by the parties and find them to be without merit. Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.