In Farren v. Lisogorsky, 2011 NY Slip Op 06366 (2d Dept.), the plaintiff sued a pharmacist for incorrectly filling a prescription for the plaintiff and, after ingesting the drugs, the plaintiff incurred personal injuries. The pharmacist sought to dismiss the plaintiff’s case pursuant to CPLR 3211 (a)(5) due to the applicability of the “res judicata” doctrine (also known as “claim preclusion”).
The pharmacist argued that since the plaintiff commenced and settled a lawsuit against the pharmacist’s employer already, then the plaintiff is precluded from suing the pharmacist individually, since the pharmacist was in privity with the pharmacy and the same questions in the previous lawsuit were being litigating again. (“Privity” means the connection or relationship between two parties, each having a legally recognized interest in the same subject matter.)
The Supreme Court granted the pharmacist’s motion, but on appeal the Appellate Division, Second Department disagreed and reversed, holding for the plaintiff. The Court held the following: “the doctrine of res judicata is inapplicable to the instant action, as the plaintiff never asserted any claim against the defendant in his capacity as an employee of [the pharmacy], and seek here to hold him liable solely in his professional capacity as a pharmacist. The fact that the plaintiff sued one tortfeasor, [the pharmacy], does not automatically preclude him from suing another tortfeasor, such as the defendant herein, in a subsequent action.” The Court also noted that there was insufficient evidence to conclude that the pharmacist was in privity with the pharmacy.
Salvatore R. Marino, Esq.
