Pennie Edmonds v. Valutron, N v. No. 311794 (Jul. 8, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The defendant, David L. Hill, has moved to reargue the decision of the court granting summary judgment against him on the basis of collateral estoppel. Hill claims that he did not, and could not have, raised the issue of malpractice in the prior New York action, and that the plaintiff did not prove the value of its services in that prior action.

In its memorandum of decision this court noted that "Hill raised the issue that he had not received any consideration for the personal guaranty executed." As was also noted in that memorandum of decision, the court in the New York proceeding stated that the defendants did not dispute that they owed the money that was sued upon. Thus, Hill not only had the opportunity to litigate the issue of consideration,¹ the existence of consideration was necessarily determined in the New York action.

Hill also relies on Comment b of the Restatement (Second), Judgments § 22, which states that "the defendant's failure to allege certain facts either as a defense or a counterclaim does not normally preclude him from relying on those facts in an action subsequently brought by him against CT Page 5149-AAAAA the plaintiff." The court does not dispute Hill has a right to bring a separate malpractice action against the plaintiff. However, that Hill may have a claim against the plaintiff does not vitiate the collateral estoppel effect of the New York judgment.

The motion to reargue is denied.

BY THE COURT

Bruce L. LevinJudge of the Superior Court