
    Herman Goldfarb, Plaintiff, v. A. Norman Cranin, Defendant.
    Supreme Court, Special Term, Nassau County,
    May 15, 1962.
    
      E. Edan Spencer for defendant. Miller & Bush for plaintiff.
   William R. Brennan, Jr., J.

Motion for summary judgment dismissing the complaint is granted.

The action is for malpractice. The defendant, a dentist, sued in August, 1957, for professional services rendered to plaintiff herein. A default judgment was entered on February 3, 1958. The plaintiff, as defendant therein, appeared, answered, and interposed a counterclaim for injuries caused by the carelessness of the dentist, but did not appear at the trial.

A prior default judgment bars a subsequent suit on the issues which were, or could have been, determined in the earlier action (Goebel v. Iffla, 111 N. Y. 170; Blair v. Bartlett, 75 N. Y. 150). The Blair case involved a default judgment in a Justices’ Court for services rendered by a physician and the effect of the default judgment as a bar to any subsequent action for malpractice. Necessarily decided, according to Blair (supra, p. 154) was that the services rendered were of value to the patient and “ if of use, they could not have been harmful; and if not harmful, there could not have been mala praxis in the performance of them. ’ ’

The plaintiff contends that he chose not to defend the prior action because he could not obtain professional witnesses to testify as to the faulty work of the defendant herein. A similar contention was raised and rejected in Statter v. Statter (2 N Y 2d 668). In Statter, the plaintiff wife urged that her failure to interpose a counterclaim for annulment in an earlier action by her husband for a separation was caused by her lack of evidence at that time to establish her cause of action. As stated on page 673: “ The essence of res judicata is the fact that a court has already been presented with the subject sought to be litigated and has rendered a judicial determination thereon. The question of what evidence has been actually produced is immaterial. ’ ’  