Gerson-Ogden, Inc. v. Tempo Communications, Inc.

I concur in result on the ground that defendants are entitled to an opportunity to prove that (1) there is an identity of issues between the two actions sufficient to preclude the plaintiff despite the apparent difference in parties, and (2) plaintiff had an opportunity in the prior action to litigate the issues as to which collateral estoppel is sought to be pleaded.

Orders, Supreme Court, New York County (Shainswit, J.), entered June 4 and August 10,1981, which denied the motions of defendants Tempo Communications, Inc., and Avon Products, Inc., for leave to serve an amended answer, unanimously reversed, on the law and the facts and in the exercise of discretion, with costs, and the motions are granted. Special Term erred in ruling that the proffered defense of collateral estoppel had been rejected in the order and decision denying defendants’ prior motions for summary judgment, affirmed by this court (79 AD2d 559). It was there held that these defenses were not dispositive as to other material issues of fact in these actions. It may be, however, that collateral estoppel precludes plaintiff *551from relitigating certain factual issues in this case. We do not decide this but merely hold that defendants should have the opportunity, under CPLR 3025 (subd [b]), to present the defense. The grant of leave to amend is particularly appropriate here, as defendants could not have asserted this defense when the actions were first commenced and plaintiff has now had notice of this defense for the last two years. Concur — Murphy, P. J., Birns, Ross and Lupiano, JJ.