KISIELEWICZ v. MULLINS

Order of the Supreme Court, Queens County, dated December 27, 1966 and made on reargument, reversed insofar as appealed from, with $10 costs and disbursements, and defendant's motion for summary judgment granted, on the ground that the issues of his negligence and plaintiff's freedom from contributory negligence were previously determined in the prior action in the Civil Court of the City of New York and are res judicata in the present action ( Cummings v. Dresher, 18 N.Y.2d 105, 107-108; B.R. De Witt, Inc. v. Hall, 19 N.Y.2d 141). Teper v. Rackman ( 264 App. Div. 981), cited in the memorandum at Special Term, is distinguishable. There, only the insurance carrier's subrogation claim was litigated. In the instant action the prior suit included also a claim for plaintiff's damage not reimbursed by the insurance carrier because of the deductible damage clause. Thus, plaintiff was a real party in interest in the previous action. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.