Thursday, August 4, 2016

Res judicata and permissive counterclaims.

Practice point:  New York is a permissive counterclaim jurisdiction, pursuant to CPLR 3011. New York's permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been, but were not interposed in the parties' prior action.  However, it does not permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action.

Student note:  Under New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Case:  Paramount Pictures Corp. v. Allianz Risk Transfer AG, NY Slip Op 05618 (1st Dep't July 21, 2016)

Here is the decision.

Tomorrow's issue:  A municipality's liability based on a special duty owed to an injured plaintiff.