Rosen v. Jack D. Levine, Inc.

In a conversion action, plaintiffs appeal from so much of an order of the Supreme Court, Kings County, dated August 3, 1976, as denied the branches of their motion which sought (1) summary judgment dismissing defendant’s counterclaim and striking the affirmative defenses contained in the answer, (2) to strike certain statements from paragraphs 2, 3 and 4 of the answer and (3) a protective order vacating defendant’s notice for an examination of plaintiff's before trial. Order modified by deleting the first decretal paragraph thereof and substituting therefor provisions (1) granting plaintiffs summary judgment dismissing the counterclaim, with the proviso that the matters alleged therein be permitted to stand as the third affirma*865tive defense and (2) denying the branch of plaintiffs’ motion which sought dismissal of the affirmative defenses. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Defendant has already recovered a judgment based upon the claim raised in the counterclaim. The doctrines of res judicata and collateral estoppel therefore bar it from seeking a second recovery by means of a counterclaim. Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.