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On or about 2 January 1975, defendant who is a physician commenced an action

On or about 2 January 1975, defendant who is a physician commenced an action against the plaintiffs in the District Court, Nassau County, to recover the sum of $750 for professional services rendered on or about 21 May 1974, with interest. A default judgment was entered in that action against the plaintiffs on 7 February 1975.

On 22 March 1976, plaintiffs commenced the instant personal injury action against a doctor and a Hospital for medical malpractice (for the injury sustained as a result of the negligence in the care of plaintiff) allegedly committed during the period between 27 May 1974 and 22 June 1974, in which issue was joined by the individual defendant on 27 October 1976. Thereafter, the defendant doctor moved, inter alia, to amend his answer to assert the affirmative defenses of res judicata and collateral estoppel and, in the alternative, a summary judgment. The plaintiffs then cross-moved for leave to serve a supplemental Bill of Particulars. The motion to amend defendant’s answer and the motion for summary judgment was denied. Thus, defendant doctor appeals the said judgment.

The Issues:

Was the denial of defendant’s motion for leave to serve an amended answer proper? Was the denial of the motion for summary judgment also proper?

The Ruling:

Under the law, in order to invoke the principles of res judicata and/or collateral estoppel as a defense to an action, it must be established, inter alia, that the issue in the prior action is identical and, thus, decisive of, issue in the current action. 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 interests established by the first.

Here, the court finds that the necessary identity of issues is absent. According to the complaint in the prior action, the services upon which the doctor sued and recovered a judgment were rendered on or about the 21 May 1974, which is the same date from which the interest was designated to run. In fact, no other date was ever mentioned in that action. Consequently, the appellant from Suffolk should be bound by this formal assertion and should not now be permitted to argue that the judgment obtained in the District Court was for services rendered at any other time. When the plaintiffs commenced the instant action to recover damages resulting from the services rendered on and after 27 May 1974, an entirely new claim was asserted. There was and could not be any common issue. Hence, assuming the rule to be that a default judgment in favor of a doctor against his patient for services rendered bars a subsequent action for medical malpractice arising out of the rendition of the same services, the principles of res judicata and collateral estoppel can have no application where, as here, the underlying services and, perforce, the issues necessarily determined in the prior action were in no respect the same. Since the prior action, by its terms, at most determined the value of services rendered up to and including 21 May 1974, the plaintiffs, in all fairness, should not be precluded thereby from presently litigating the question of malpractice regarding the rendition of services thereafter.

In a nutshell, the appellant has failed to demonstrate the necessary identity of issues to preclude the later action. As the proposed amendment was patently insufficient, that branch of the appellant’s motion which was for leave to serve an amended answer and for an accelerated judgment were properly denied. The lower court’s decision is affirmed.

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