Opinion
Not published with other decisions of October, 1978, 65 A.D.2d 546. [Rep.
Motion by defendant Schmierer for summary reversal of an order of the Supreme Court, Kings County, dated October 4, 1977, on the ground that in the case of De Felice v. English ( 63 A.D.2d 976) this court disapproved of the holding by Special Term resulting in the order now on appeal. In De Felice, supra, this court stated: "We disapprove the holding in Pigno v. Bunim (NYLJ, Sept. 8, 1977, p 12, col 2) insofar as it is contrary to the reasoning of Special Term herein." In the De Felice case, the third-party defendant St. John's Episcopal Hospital moved for summary judgment dismissing the third-party complaint of a Dr. Howard A. English upon the ground that another action by the plaintiff De Felice against the hospital itself had resulted in a defendant's verdict and that this determination should collaterally estop English from seeking indemnity or contribution from it for the plaintiff's injuries. Special Term held that since English was not a party to the suit between the main plaintiff and the third-party defendant hospital, he was not bound by the result therein. In the instant case Special Term granted a motion to dismiss a cross claim asserted by a third-party defendant, the estate of a Dr. Samuel Pennell (Pennell), against the third-party defendants Bunim and Maimonides Hospital. The dismissal of Pennell's cross claim was premised upon the fact that in a prior trial and appeals in this case it had been determined that the defendant hospital and the defendant Bunim were not liable to the plaintiff Pigno (Pigno v Bunim, 43 A.D.2d 718, affd 35 N.Y.2d 841). Since Bunim and the hospital had been found not liable to the main plaintiff, Special Term held, inter alia, that Pennell's cross claim for indemnity against those parties could not stand. This was despite the fact that Pennell was not a party to this action at the time of the earlier trial and appeals. In De Felice, supra, we disapproved the decision in this case only insofar as it held that Pennell was bound by the result of a prior trial held before he was made a party to the action (see Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65). This motion for summary reversal must be denied because the movant, Schmierer, was a party at the time of the prior trial and, therefore, our holding in De Felice does not apply to him. Damiani, J.P., Suozzi, Rabin and Hawkins, JJ., concur.