Wade Clark Mulcahy LLP

In Farren v. Lisogorsky, the plaintiff sued Metro pharmacy after plaintiff had a prescription filled at Metro, however Metro filled the prescription with the wrong drug, causing plaintiff to sustain personal injuries. In plaintiff’s action against Metro, it conceded liability, however contested damages. Prior to trial, Metro and plaintiff settled for $300,000 and executed a stipulation of discontinuance with prejudice.
Plaintiff then commenced an action against Lisogorsky, part owner of Metro and the pharmacist/employee that allegedly improperly filled the plaintiff’s prescription. Prior to answering, Lisogorsky moved to dismiss under CPLR 3211(a)(5) and (7). With respect to (a)(5), the trial court granted Lisogorsky’s motion to dismiss on the basis of res judicata. Plaintiff appealed.
The Appellate Division, Second Department reversed, finding that the doctrine of res judicata was inapplicable to plaintiff’s action against Lisogorsky. The Second Department reasoned that plaintiff was entitled to pursue Lisogorsky in his professional capacity as a pharmacist, which was entirely distinct than the suit against Metro. As such, the doctrine of res judicata was inapplicable and the trial court improperly granted Lisogorsky’s motion to dismiss on that basis.
<a href="http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06366.htm">http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06366.htm</a>
Thanks to Alison Weintraub for her contribution to this post.