Jean C. Peterson v. Sara L. Forkey Et Al‪.‬

[50 A.D.2d 774 Page 774] Order, Supreme Court, New York County, entered February 19, 1975, granting summary judgment to plaintiff, reversed, on the law, and the motion denied, without costs or disbursements. On November 20, 1969, Jean C. Peterson (Peterson) was driving an automobile in which one Roosevelt Barcus (Barcus) was a passenger. The Peterson car collided with a trailer truck driven by Harold Forkey (Forkey). Two actions were instituted, one in which Barcus sued Peterson and Forkey, and the instant action in which Peterson sued Forkey. The Barcus case was tried to a jury on the issue of liability only, which jury returned a special verdict in favor of Barcus and specifically found Peterson (as a defendant) free of negligence and found Forkey (as a defendant) solely negligent. After the verdict on liability, Barcus settled his claim and the action was never reduced to judgment by any party. Based on the special verdict finding Peterson free of negligence, Peterson moved for summary judgment in her action as a plaintiff, which motion was granted by Special Term on a theory of collateral estoppel. We would reverse. Both the doctrines of res judicata and collateral estoppel have as their prerequisites the entry of a judgment. Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties constitute a bar, unless followed by a judgment based thereon, or [50 A.D.2d 774 Page 775]