National Kitchens, Inc. v. Central Railroad , 25 A.D.2d 506 ( 1966 )

Order, entered June 30, 1965, in action against carrier for damages to personal property, granting plaintiff summary judgment, pursuant to CPLR 3213, on notice of motion and supporting papers served in lieu of complaint, unanimously reversed on the law, and the motion denied, with $50 costs and disbursements to abide the event, with leave to plaintiff to serve a formal complaint based on the underlying causes of action on which it seeks to recover. It is not necessary to reach the question whether CPLR 3213 reference to a judgment is restricted to one with a direction only for the payment of money in a certain sum. It suffices for this ease that the judgment upon which plaintiff relies in fact made no direct determination on the liability issues now tendered, although the Trial Justice was requested to make such determination formally. Nor does it aid plaintiff that the Trial Justice in the prior action stated in a supplemental opinion what findings he would make if he wore making findings. In so concluding, of course, this court does not now determine what collateral estoppel, as distinguished from direct estoppel, applicable to some of the issues, may flow from so much of the judgment that was in fact rendered on the merits (see Ripley v. Storer, 309 N. Y. 506, 512-513, 517-519; Rudd v. Cornell, 171 N. Y. 114, 125-127; Restatement, Judgments, § 68, and Comment). Because the motion is denied for these reasons and not merely because there is or may be an issue of fact raised by controverted affidavits, leave is granted to plaintiff to proceed in the action by formal complaint, as permitted by CPLR 3213. This will allow defendant to interpose defenses, if it be so advised, on the sufficiency of which the court also does not now pass.

Concur — Breitel, J. P., Rabin, Valente, Eager and Witmer, JJ.