Mayers v. D'Agostino
Cases that cite this one
44 later published cases cite this decision. The 25 that cite it most often are listed here.
- Matter of Peters v. Caton Towers Owners Corp. (New York Supreme Court, Kings County 2024)
- Vanderpool v. Loftness (Colo. App. 2012)
- Department of Social Services ex rel. Katherine McL. v. Jay W. (Appellate Division of the Supreme Court of New York 1984)
- State v. International Fidelity Insurance (Appellate Division of the Supreme Court of New York 1989)
- Rodriguez v. City of New York (Appellate Division of the Supreme Court of New York 1983)
- Kret v. Brookdale Hospital Medical Center (Appellate Division of the Supreme Court of New York 1983)
- Encarnacion v. Irby (District Court, S.D. New York 2024)
- Lennon v. 56th & Park(NY) Owner, LLC (Appellate Division of the Supreme Court of New York 2021)
- Country-Wide Insurance Co. v. Gotham Medical, P.C. (Appellate Division of the Supreme Court of New York 2017)
- Zhang Hua Lin v. Zhang Li Lin (New York Supreme Court 2016)
- Country-Wide Insurance v. Gotham Medical, P.C. (New York Supreme Court 2015)
- Sherwyn Toppin Marketing Consultants, Inc. v. New York State Liquor Authority (Appellate Division of the Supreme Court of New York 2013)
- Sherwyn Toppin Marketing Consultants, Inc. v. New York State Liquor Authority (Appellate Division of the Supreme Court of New York 2013)
- Paterno v. Carroll (Appellate Division of the Supreme Court of New York 2010)
- Ryan v. Kellogg Partners Institutional Services (Appellate Division of the Supreme Court of New York 2010)
- Simonds v. Kirkland (Appellate Division of the Supreme Court of New York 2009)
- Lindner v. Wilkerson (Appellate Division of the Supreme Court of New York 2003)
- DeLaurentis v. Nager (Appellate Division of the Supreme Court of New York 2003)
- Guiliano v. Carlisle (Appellate Division of the Supreme Court of New York 2002)
- Aponte v. Brentwood Union Free School District (Appellate Division of the Supreme Court of New York 2000)
- Capstone Enterprises of Port Chester, Inc. v. County of Westchester (Appellate Division of the Supreme Court of New York 2000)
- In re Hall (Appellate Division of the Supreme Court of New York 2000)
- Lane v. Beard (Appellate Division of the Supreme Court of New York 1999)
- Konrad v. 136 East 64th Street Corp. (Appellate Division of the Supreme Court of New York 1998)
- Chase Investments, Ltd. v. Kent (Appellate Division of the Supreme Court of New York 1998)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
opinion of the court
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
CPLR 3211 (subd [e]) provides, inter alia, that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required.
Defendants raised the defense of collateral estoppel for the first time during the trial. Consequently, defendants waived this defense unless they could obtain leave to amend their answer to include the affirmative defense.
The decision to grant or deny leave to amend an answer is within the trial court’s discretion (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 150, pp 595-596; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.14). Since one of the purposes upon which the doctrine of collateral estoppel is premised is to conserve the resources of the courts and litigants (Gilberg v Barbieri, 53 NY2d 285, 291) and since defendants failed to move to amend their answer until plaintiff had presented nearly all his evidence, we cannot say, as a matter of law, that the trial court, in denying the motion, abused its discretion.
In view of defendants’ waiver of the defense of collateral estoppel, we need not pass on the question of the propriety of raising that defense under the circumstances present here.
We have also considered the evidentiary issues raised by defendants and find no basis for reversal.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed, with costs, in a memorandum.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.