IMPERIAL OUTFITTERS TO LARGE MEN v. GENESCO, INC

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division ( 95 A.D.2d 755). We add that defendant Genesco's claim that defendant 48-48 Associates, Inc. is collaterally estopped from litigating the proper interpretation of the lease language in this cross claim because of the judicial interpretation previously made in plaintiff's action is without merit since 48-48 Associates did not have a full and fair opportunity to litigate the issue in the prior proceedings (see, Schwartz v Public Administrator of County of Bronx, 24 N.Y.2d 65, 72-73; see also, Restatement [Second] of Judgments § 28 [1]).

Concur: Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR.