Video Artists, Inc. v. Cinerama, Inc. , 27 A.D.2d 829 ( 1967 )

Order entered July 21, 1966, granting plaintiff's motion to dismiss as invalid the affirmative defense of res judicata unanimously reversed, on the law, with $50 costs and disbursements to defendant-appellant, and the motion denied. The amended complaint alleges three causes of action for alleged fraud and deceit and prima facie tort. The amended complaint followed the dismissal of the complaint by order dated April 25, 1966, with leave to “ replead limited to alleged wrongful acts transpiring after December 15, 1964.” The defense is grounded on the judgment entered April 7, 1966 and the satisfaction thereof which were the bases for the defendant’s motion to dismiss the complaint. The order of April 25, 1966 determined the insufficiency of the complaint; it did not pass on the validity of the defense in the answer to the amended complaint here involved. (Donato v. American Locomotive Co., 283 App. Div. 410, 413, affd. 306 N. Y. 966.) The record in the prior action terminating in the judgment of April 7, 1966 establishes that issues were resolved relating to the period subsequent to December 15, 1964. The extent, if any, to which plaintiff may be estopped by the prior judgment and proceedings depends on the proof tendered and adduced by the plaintiff to establish the allegations of the amended complaint. (See Sielchen-Schwarz v. American Factors, 265 N. Y. 239, 243, 244.) Concur—Steuer, J. P., Tilzer, Rabin, McNally and Staley, Jr., JJ.