
    Blanche Molino, as Administratrix of the Estate of Carol A. Molino, Deceased, Appellant, v. County of Putnam et al., Respondents, et al., Defendant.
    Argued February 24, 1971;
    decided June 10, 1971.
    
      
      Eugene D. Zinbarg and Irving Payson Zinbarg for appellant.
    I. The Appellate Division erred in affirming the order granting defendants-respondents leave to plead res judicata and collateral estoppel after the first unappealed Appellate Division decision, especially since the merits of these defenses have never been ascertained to this day. (Nash v. United States, 54 P. 2d 1006; Krulewitch v. United States, 336 U. S. 440; People v. Robinson, 273 N. Y. 438; Goodmanv. Kirshberg, 261 App. Div. 257, 262 App. Div. 711.) II. The United States District Court judgment against the absentee owner individually is not available as a plea in bar against the administratrix. (Rathbone v. Hooney, 58 N. Y. 463; City Bank Farmers Trust Co. v. Silberberg, 280 N. Y. 424; Collins v. Hydorn, 135 N. Y. 320; First Nat. Bank v. Shuler, 153 N. Y. 163; Brooks v. Horning, 27 A D 2d 874, 20 N Y 2d 760.) III. The basic requirements for res judicata or collateral estoppel to be valid defenses are not present here since (a) defendants have not shown an “ identity of issue” in both actions; (b) plaintiff was not a party, and did not participate, in the other action, and she did not have any opportunity, let alone a “ full and fair opportunity ” to be heard. (Schwartz v. Public Administrator of County of Bronx, 24 N Y 2d 65; Pfaffenbach v. White Plains Express Corp., 17 N Y 2d 132; Wragge v. Lizza Asphalt Constr. Co., 17 N Y 2d 313.)
    
      Samuel S. Slavitt and Howard H. Schrecke for The County of Putnam, respondent.
    I. In the exercise of the applicable liberal policy embraced in CPLR 3025, subd. (b), the subject amended answer was properly allowed. (Rife v. Union Coll., 30 A D 2d 504; Ruggiero v. Faulkner, 31 A D 2d 639; Giliberti v. City of New York, 23 A D 2d 666.) II. The subject affirmative defense is legally sufficient. (Town Bd. of Town of Falls-burgh v. National Sur. Corp., 53 Misc 2d 23, 29 A D 2d 726; Leutloff v. Leutloff, 47 Misc 2d 458; Palma v. Powers, 295 F. Supp. 924; Israel v. Wood Dolson Co., 1 N Y 2d 116; B. R. DeWitt, Inc. v. Hall, 19 N Y 2d 141; Schwarts v. Public Administrator of County of Bronx, 24 N Y 2d 65; Albero v. State of New York, 31 A D 2d 694, 26 N Y 2d 630; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Winbush v. City of Mount Vernon, 306 N. Y. 327; Stols v. New York Cent. R. R. Co., 7 N Y 2d 269; Brussewski v. United States, 181 F. 2d 419.) III. The law of the instant case was not fixed as to the defendant-county either by the Appellate Division or by the decision of Mr. Justice Hawkins at Special Term.
    
      John Nielsen for Michael Joseph Prodoti, respondent.
    The prior judgment is a bar to the instant action. (Schwartz v. Public Administrator of County of Bronx, 24 N Y 2d 65; Bartalone v. Niagara Car & Truck Rentals, 24 N Y 2d 65; Monti Mar. Corp. v. Anderson, 10 A D 2d 645, 717; Shaw v. Village of Hemp-stead, 20 A D 2d 663; Matter of Paliotto v. Dickinson, 22 A D 2d 929; Matter of Lunden v. Petito, 30 A D 2d 820; Zdanok v. Glidden Co., Durkee Famous Foods Division, 327 F. 2d 944; Sears, Roebuck & Co. v. 9 Ave.31st St. Corp., 274 N. Y. 388; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Davis v. New York Cent, & H. R. R. R. Co., 233 N. Y. 242.)
   Gibson, J.

The case before us for decision represents yet another variant from the pattern of negligence actions in which the principle of collateral estoppel has been successfully asserted following prior litigation of one or more of the underlying negligence issues.

The plaintiff administratrix, suing both for the wrongful death and the conscious pain and suffering of her daughter, who died as a result of injuries sustained in a one-car accident, seeks recovery against Putnam County and the defendant Prodoti, charging defendant county with negligent maintenance of the highway and defendant Prodoti with negligently interfering with decedent’s operation of the automobile. In a prior action in a United States District Court, Prodoti, alleging that decedent was the driver, recovered against the car owner, her father. The administratrix was not a party to the prior suit.

Subsequent to the determination in the District Court, defendant Prodoti’s motion to amend his answer so as to interpose the defenses of res judicata and collateral estoppel was granted and a similar motion by defendant county was later denied, without prejudice. Upon appeal by plaintiff, the Special Term order granted on Prodoti’s motion was reversed, the Appellate Division, Second Department, holding that ‘ ‘ the defense of res judicata which respondent seeks to interpose in his amended answer is not available against appellant, who was not a party or in privity with the defendant in the litigation which resulted in the prior judgment ” (30 A D 2d 929). Following the decision of this court in Schwarts v. Public Administrator (24 1ST Y 2d 65), the defendants renewed their motions, Special Term granted them, and, upon appeal, the Appellate Division affirmed, without opinion, Presiding Justice Christ dissenting in a memorandum in which Justice Hopkins joined, considering that before collateral estoppel may be used against a party, that party, or one in privity with him, must have had at least one opportunity to litigate the issues involved ”; and that plaintiff was neither a party to the prior litigation nor in privity with the defendant there sued (35 A D 2d 578, 579). The case comes to us from the order deciding the second appeal.

In each of the cases considered to have established, and in successive steps expanded the more recent concept of res judicata and collateral estoppel, there had previously been a recovery against the party against whom the rule, in one or the other of its forms, was applied in the later action. Thus, in Good Health Dairy Prods. Corp. v. Emery (275 N. Y. 14) the defendant’s driver, upon establishing that he was free from any negligence, had previously recovered against the plaintiff owner. In Cummings v. Dresher (18 N Y 2d 105) the plaintiffs, owner and operator, suing the owner and operator of the second automobile involved, had previously been found negligent in an action brought by a passenger in the second automobile. In B. R. DeWitt, Inc. v. Hall (19 N Y 2d 141), where the rule was affirmatively applied to mandate a recovery, the plaintiff owner’s driver had previously recovered against the defendant owner Hall. In Schwartz v. Public Administrator (24 N Y 2d 65, supra), an action by one driver against the other, the prior recovery had been by a passenger against both drivers. In Albero v. State of New York (31 A D 2d 694, affd. 26 N Y 2d 630), claimant was an operator and the record was open to the factual possibility, among others, of concurrent negligence on the part of the State and another driver, but the latter had previously recovered against claimant.

In the case before us, it is sought, for the first time in this court, to apply the principle of collateral estoppel to a plaintiff who was not a party to the prior litigation. Indeed, defendant Prodoti is the only party to this action who was' also a party in the Federal case. The pattern, above alluded to, of application of the principle, defensively at least, only to bar recovery by parties against whom judgment upon the same issues had previously been had, did not emerge fortuitously, but parallels and reflects the cognate rule laid down in the earlier cases (see, e.g., Liberty Mut. Ins. Co. v. Colon & Co., 260 N. Y. 305, 308, 312), and consistently reiterated in the later ones, as “the sound principle that, where it can be fairly said that a party has had a full opportunity to litigate a particular issue, he cannot reasonably demand á second one ’ ’ (Schwartz v. Public Administrator, 24 N Y 2d 65, 69, supra; B. R. DeWitt, Inc. v. Hall, 19 N Y 2d 141,145, supra; Cummings v. Dresher, 18 N Y 2d 105, 107-108, supra; Israel v. Wood Dolson Co., 1 N Y 2d 116, 119; Good Health Hairy Prods. Corp. v. Emery, 275 N. Y. 14, 18, supra).

It cannot be gainsaid that plaintiff administratrix did not have a full and fair opportunity, nor, indeed, any opportunity, to contest the issues tendered in the District Court. The circumstance that, she and the defendant absentee owner in that case are wife and husband, as well as decedent’s parents and only distributees, is not of compelling legal significance. Thus, we are bound to treat as completely tenuous respondent county’s contention that if the mother had ‘ ‘ knowledge or other proof * * * she had the opportunity and duty to present the same ” at the District Court trial. Respondent does not substantiate its contention in respect of either ‘ ‘ opportunity ” or “ duty ’ ’ and it cannot rationally be held that either existed. Dealing, as we must, with rules of general .application, we consider that respondent’s argument, being in large part factual, would fail in any event upon consideration of its impact in such other cases as that, for example, of an infant distributee and a corporate or other administrator without knowledge derived from a family relationship (cf. Smith v. Hood, 396 F. 2d 692).

We find no greater substance in the argument that plaintiff’s representative capacity is not meaningful and that, disregarding it, we must look only to the interests of the parents as distributees and in some fashion find that both are bound by the determination rendered against the father as an absentee owner. The legal differences between individuals and estate representatives are practical as well as technical, and too well established to require discussion. This being so, it is unnecessary to do more than note the additional and subsidiary consideration that in an action for conscious pain and suffering, and to a lesser degree in a wrongful death action, an executor or administrator represents interests additional to those of the distributees.

If, nevertheless, we take account of the possibility of a recovery by the administratrix and the ultimate payment of a share therein to the father, who has previously been found negligent by reason of the purely vicarious liability imposed by statute (Vehicle and Traffic Law, § 388), there is nothing that is either new or deplorable in such a result. The statute which imputes to an absentee owner the negligence of his driver, for the purpose of imposing liability to an injured third party, does not impute contributory negligence to such an absentee owner in his action to recover his own damage (Continental Auto Lease Corp. v. Campbell, 19 N Y 2d 350; Mills v. Gabriel, 284 N. Y. 755). Thus, in Continental, the absentee owner recovered its property damage sustained in a two-car accident although its own and the other driver were found negligent; and in Brooks v. Horning (27 A D 2d 874, mot. for lv. to app. dsmd. 20 N Y 2d 760) the court recognized the rights of both the absentee owner and his driver to recover, although the passengers in the car had recovered against the owner in an action to which the driver was not a party. It was similarly, and correctly held in Willsey v. Strawway (44 Misc 2d 601, affd. 22 A D 2d 973) that the vicarious liability imposed by section 388 does not create privity for purposes of collateral estoppel nor serve to deprive an operator not participating in the prior action of her day in court.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Special Term for further proceedings in accordance with this opinion, and the question certified answered in the negative.

Burke, J. (dissenting).

I would affirm. The public interest in preventing repetitious litigation warrants barring the Molino family from a second contest of the same issues. In Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 306-307, Judge Cardozo wrote A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interest established by the first (Cromwell v. County of Sac., 94 U. S. 351; Reich v. Cochran, [151 N. Y. 122]) ”. In other words, Judge Cardozo was saying that if the issue or issues in the second action were material and necessarily involved in the first action, the threat of impairment must be present.

In this case the determination made on each of the several issues in the former suit was essential to the judgment, therefore, all issues are precluded from further contest. If Prodoti had been denied recovery in the former suit because he was contributorily negligent, the Molinos could bring suit and collateral estoppel would not lie because the finding that Carol Ann Molino was negligent was not “ necessary ” or “ essential to the earlier judgment ”. (See Rosenberg, Collateral Estoppel in New York, 44 St. Johns L. Rev. 165, 182.) Here, on the other hand, the finding of freedom from contributory, negligence supported the judgment.

Of course, Joseph Molino’s liability is merely derivative. He could not be held liable in the former suit unless his daughter, Carol Ann Molino, the operator of the car owned and insured by Joseph Molino had not only been found to be negligent, but in addition that the plaintiff Prodoti had to prove he was free from contributory negligence. Therefore, if those specific issues were necessarily determined in the former suit, Blanche Molino, the mother, a distributee and now legal representative of Carol Ann Molino, is collaterally estopped from relitigating the same issues. Moreover, since Carol Ann Molino was found to be negligent in the former suit in the Federal court she, and her legal representative, are precluded from recovering in any action involving the same accident under the laws of New York. Under New York law, if Carol Ann Molino was in the slightest degree contributorily negligent, she, and if she died after the service of the complaint, her legal representative, would not be permitted to recover either against Prodoti or the County of Putnam on any cause of action.

A resort to abstract notions and generalities relating to privity or causes of action for wrongful death or pain and suffering is not appropriate. The latter are just tags — all are suits in negligence. Privity ‘ ‘ is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata” (Bruszewski v. United States, 181 F. 2d 419, 423 [3d Cir; conc. opn.]). Carol Ann Molino would have been a defendant in the former suit as an insured if she were alive and would have been represented by the same counsel. Her mother and her father as distributees, and her creditors, if any, now cannot argue that there is a lack of privity because Carol Ann died after the accident and before she was made a party. Their interests in the accident depend on whatever favorable claims on the issues of negligence Carol Ann Molino as the driver-participant could establish to the satisfaction of the jury in the former suit. Therefore, it is necessary to consider this case on the issues that were presented, tried and decided in the Federal court.

The only three essentials to be established are: 1) that the issues in question are identical with the issues in the prior action; 2) that it was necessary to the earlier determination, and 3) that it was actually litigated ”. (Restatement, Judgments, § 68 [1942]; see Schwartz v. Public Administrator, 24 N Y 2d 65, 69, 72, 74; B. R. DeWitt, Inc. v. Hall, 19 N Y 2d 141, 148.) To that end we must turn to the record in the former suit and particularly the charge to the jury in the former suit (Prodoti v. Molino) to determine whether the same issues would arise in this case as were raised in the former suit.

The charge of Judge Mansfield in the Federal court was thorough. He stated that the theory of the plaintiff’s case was that the accident was caused by negligence on the part of Carol Ann Molino in operating the auto at a dangerous and excessive rate of speed and in a reckless manner. He pointed out that the defendant denied any such negligence and contended that the plaintiff has failed to show that he himself was free of contributory negligence. In order to recover, the Judge advised the jury, the plaintiff had to bear the burden of establishing by a fair preponderance of evidence three elements: 1) that the driver of the car was negligent; 2) that her negligence was the proximate cause of his injuries, and 3) he himself was free from contributory negligence. He discussed in detail the standards of due care. He then summarized the high points of the evidence given by the plaintiff, his cross-examination and the evidence of all surrounding circumstances found immediately after the accident and attested to by the police officers, and photographs. He then emphasized that the defendant questioned the plaintiff’s credibility and added that the defendant argued that the marks on the road rather than indicating reckless and excessive speed, established the fact that the defendant, Carol Ann Molino, had applied the brakes for a distance of 225 feet. The defendant argued that the cross-examination of Prodoti, the plaintiff, indicated that the accident might have been caused by some other cause, whether it was a defect in the car or conduct on the plaintiff’s part, rather than of negligence on the part of the driver.

Judge Mansfield then went on to explain that even if the driver was negligent the plaintiff had to convince them that her negligence was the proximate cause of the plaintiff’s injuries, that is, that there must be a causal connection between any negligence on the part of the driver and the plaintiff’s injuries. He stated “proximate cause of an injury is a cause which in a natural and continuous sequence unbroken by any new cause produces the injuries and without which the injuries would not have occurred.” The court again carefully instructed the jury that if the driver’s negligence was the proximate cause of the accident, they had to further decide whether the plaintiff had proven by a fair preponderance of the evidence that he himself was free from contributory negligence. In that regard he cautioned the jury that it is the duty of a passenger to exercise such due care for his own safety and to take such precautions as an ordinarily prudent person would take under the circumstances to protect himself against any dangers that might result from the driver’s negligent operation of the vehicle. Finally he emphasized that their decision had to be made in view of the contentions made by the defendant regarding the evidence given by the plaintiff, Prodoti’s knowledge of the driver’s state of mind immediately prior to her driving off and whether or not he could have proceeded or taken any action such as turning off the ignition, fastening the seat belt or the like, that would have avoided his being injured. The court then referred to the cross-examination which the defendant said established by inference that there had been arguments between the plaintiff and Miss Molino, that Prodoti was aware of and contributed to her state of mind and that should have made him realize that she was likely to do something on the spur of the moment, as to place him on an alert. The court again reminded the jury that the defendant charged that Prodoti was not telling the whole story and that if he has failed to show that the accident did not result from contributory negligence on his part that they had to find for the defendant, Joseph Molino.

Thus the trial court clearly indicated to the jury that if Prodoti could be found to be responsible in the slightest degree for contributory negligence, he could not recover. In conclusion the Judge admonished the jury on their obligation to apply common sense, experience, judgment and their observations in the courtroom to adjudge the credibility of Prodoti and indeed to take into consideration whether the witness was motivated by some other interest rather than in telling the truth. As to the critical cross-examination, the record shows that the issue of Prodoti’s contributory negligence was fully developed on cross-examination by the defense counsel. Prodoti admitted to defense counsel that Carol Ann Molino and he had ah argument and that she was upset because he had refused to drive to Mt. Kisco with her to visit her girl friend in a hospital. He conceded that on the way to the restaurant they had a further discussion and that she was still upset. He also stated he took no action to prevent the accident. This brief statement of the evidence given by Prodoti on cross-examination illustrates that the jury was aware from the cross-examination, as well as the summation, that the defense was attempting to show that the plaintiff Prodo ti’s conduct co-operated in causing the injuries. The law in New York State, as above stated, is that if the plaintiff was guilty of contributory negligence in the slightest degree, the plaintiff may not recover. It is clear that Blanche Molino, as the representative of Carol Ann Molino who was found guilty of negligence far beyond the slightest degree by the jury in the former suit after it had been carefully charged on the burden of proof, proximate cause, reasonable care and credibility, is hardly in a position to recover in relitigating the identical issues. The degree of Carol Ann Molino’s negligence is not a factor, however slight her negligence might have been. If it contributed to the injury it must be said to be the proximate cause and bar recovery. (Fitzpatrick v. International Ry. Co., 252 N. Y. 127, Ann. 68 A. L. R. 809.)

In conclusion it is only necessary to point out that the Molinos had a full and fair opportunity ” in a trial on issues that are identical. Under these circumstances the defendants have established the sole prerequisites for invoking collateral estoppel (Schwarts v. Public Administrator, supra). In that case the danger of ‘ ‘ inconsistent results which are always a blemish on a judicial system ” was eliminated.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Fund and Judges Bergan and Breitel concur with Judge Gibson; Judge Burke dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasen concur.

Order reversed, etc.  