366 Bomar Co. v. Smith, Jackson & Co.

In an action on a lease, defendant ADA Financial Service Corporation appeals from an order of the Supreme Court, Nassau County, dated October 7, 1975, which denied its motion to dismiss the third cause of action asserted in the amended complaint. Order affirmed, with $50 costs and disbursements. Appellant’s time to answer is extended until 20 days after entry of the order to be made hereon. Appellant seeks dismissal on the ground of res judicata. Whether the guarantee was comprehended in the stipulation of dismissal, with prejudice, in the previous action is not ascertainable from the existing stipulation. Such uncertainty precludes application of either the doctrine of res judicata or the doctrine of collateral estoppel (cf. Lawlor v National Screen Serv., 349 US 322). Cohalan, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.