size claim in New York

1985(People v Plevy, 52 NY2d 58, 65 .) However, in considering the issue of preclusion on the issue of liability, inasmuch as Metro, as subrogee of Helen Buxbaum, has no greater nor lesser rights as subrogor than she did as subrogee, the question then becomes a determination with respect to a particular issue made in the proceeding be tween the two parties when the same issue was raised in this instant subsequent proceeding between the same two parties.

1981Whether defendant had a full and fair opportunity to establish in the criminal action that he did not use physical force on plaintiff Gilberg requires consideration of such factors as “the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in applicable law and foreseeability of future litigation” (Schwartz v Public Administrator of County of Bronx, 24 NY2d, at p 72 , supra), or as it was recently put, in People v P

1983It is thus apparent that the size of the claim in Food Pageant (supra) is not such as to lead one to conclude that Con Ed did not have a full and fair opportunity to litigate the issue of gross negligence in that case, nor is it a factor upon which to base an argument that issue preclusion in this case would be otherwise unfair.

1982(Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 72 , supra.) Con Edison does not now contend that issue preclusion based on Food Pageant (supra) is unfair and a denial of due process because of the incompetence of counsel, foreseeability of future litigation, new evidence, forum or extent of the prior litigation.

1992Due to the disparity in the remedies, their purposes, and the opportunity to contest the issue of malice, there is no reason to assume a court’s summary findings under 22 NYCRR subpart 130-1 would necessarily collaterally estop the petitioner from having the issue of malice decided by a jury. 5 In any event, that is a determination to be made by the court in such future action and is not a basis to withhold relief at this juncture (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 ).

1985Co., 62 NY2d 494, 501 ).

1984(Penichet v Consolidated Edison Co., NYLJ, May 1, 1980, p 7, col 2; Lehman v Consolidated Edison Co., NYLJ, March 25, 1980, p 10, col 6; Finkelstein v Consolidated Edison Co., NYLJ, May 1,1979, p 13, col 3; LoVico v Consolidated Edison Co., 99 Misc 2d 897 ; Lee v Consolidated Edison Co., 95 Misc 2d1 120.) .

1983An additional highly relevant factor which must be explored is whether “[t]he determination relied on as preclusive was itself inconsistent with another determination of the same issue” (Restatement, Judgments 2d, § 29, subd [4]; Parklane Hosiery Co. v Shore, supra, p 330; Zdanok v Glidden Co., 327 F2d 944, 955, cert den 377 US 934 ; State Farm Fire & Cas.

1983Con Ed argues not only that plaintiff has failed to meet the Schwartz test for identity of issue and for a full and fair opportunity to previously litigate the issue, but also that such preclusive effect would deprive it of its constitutional right to due process of the law because the adversarial system is inescapably flawed (citing Parklane Hosiery Co. v Shore, 439 US 322 ; Blonder-Tongue v University Foundation, 402 US 313 ).

1981Whether defendant had a full and fair opportunity to establish in the criminal action that he did not use physical force on plaintiff Gilberg requires consideration of such factors as “the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in applicable law and foreseeability of future litigation” (Schwartz v Public Administrator of County of Bronx, 24 NY2d, at p 72 , supra), or as it was recently put, in People v P

1978Furthermore, it has been stated that: " 'A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availablity of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.’ ” (Randolph v Nurse, 49 AD2d 354, 356 , quoting Schwartz v Public Adminstrator, 24 NY2d 65, 72 , s

1971Even if Schwarts were held applicable to a criminal case, the result would not necessarily be different on this motion. “ A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.” (Schwartz, at p.

1971Even if Schwarts were held applicable to a criminal case, the result would not necessarily be different on this motion. “ A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.” (Schwartz, at p.