Miss Erika, Inc. v. Gelbstein

Order, Supreme Court, New York County (Stephen Crane, J.), entered April 1, 1999, which, to the extent appealed from, denied plaintiffs motion for summary judgment on its cause of action for restitution, unanimously affirmed, without costs. 277 Plaintiff contends that because it was determined in a prior action that clients of defendant, an attorney, converted plaintiffs funds, plaintiff is now entitled to restitution of those funds from defendant. However, because defendant was neither a party nor in privity with a party to the prior action, he is not collaterally estopped from litigating his liability for restitution of the converted funds. Moreover, factual issues unresolved in the prior action, respecting whether defendant’s receipt of the disputed funds from his clients was justified by his retainer agreement and whether defendant was a knowing participant in the scheme to defraud plaintiff, precluded a grant of summary judgment against defendant, determination of such issues being essential to any finding that defendant received the funds in question under circumstances in which it was “against good conscience for the defendant to keep the money” (Schank v Schuchman, 212 NY 352, 358; see also, Parsa v State of New York, 64 NY2d 143, 148; Federal Ins. Co. v Groveland State Bank, 37 NY2d 252, 258). Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.