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If You Lost Once on an Issue, Chances Are You Will Lose Again

February 23, 2012

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In <em>Montoya v. JL Astoria Sound</em>, plaintiff impaled his foot after stepping onto a piece of a broken-off metal signpost.  Plaintiff commenced two separate lawsuits, one against the property owner, and another against Duocolony, a company plaintiff claimed regularly parked its trucks on the sidewalk obscuring the plaintiff’s view of the signpost.  In the first action, the owners moved for summary judgment and plaintiff argued that his injuries were caused by his inability to see the signpost remnant, which was obscured by a parked truck on the sidewalk.  The court rejected plaintiff’s argument as speculative, and granted the owner’s motion.  Following that decision, Duocolony moved for summary judgment in its lawsuit, arguing that the doctrine of collateral estoppel barred plaintiff from arguing that the location of Duocolony’s truck obstructed plaintiff’s view of the signpost.  The Supreme Court denied Duocolony’s motion, but the Second Department <a href="">reversed</a> finding that plaintiff had a full and fair opportunity to litigate the issue of the parked truck in the action against the owners, and thus was collaterally estopped from litigating the same issue in the action against Duocolony.  It just goes to show, litigation doesn't always allow you to try, try again -- if at first, you don't succeed that is.
Thanks to Gabe Darwick for his contribution to this post.

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