entirely new claim in New York

2001We do not find that, after the fee action was ended on default, “an entirely new claim was asserted” in this action, which dealt with the same real estate matter (cf, Kossover v Prattler, 82 AD2d 610, 611 ).

1995Matter of Coates ( 9 NY2d 242 , appeal dismissed sub nom.

1994The interrelationship of common-law and statutory claims and labels in this rare combination of circumstances and on-going developments distinguishes this matter from the analytical framework and principle of Matter of Hodes v Axelrod ( 70 NY2d 364 ; see also, Matter of Meegan S. v Donald T., 64 NY2d 751 ) for finality purposes.

1983Whether reluctance to recognize duress as a toll lies in the undesirability of a rule that turns on the reasonableness of reliance upon threats of physical or economic harm, the ease of fabrication of such threats (see Jastrzebski v City of New York, supra, p 674), or simply in the judicial reluctance to create an entirely new defense to the Statute of Limitations (see Piper v Hoard, supra), we do not assay to answer, for we are not inclined in this case to attempt overthrow of the old rule.

1983Although stare decisis is not intended to effect a “ ‘petrifying rigidity’ ” (Bing v Thunig, 2 NY2d 656, 667 ), the substantive result we otherwise arrive at militates against use of this litigation to expand existing rules of estoppel.

1981Thus, assuming the rule to be that a default judgment in favor of a doctor against his patient for services rendered bars a subsequent action for medical malpractice arising out of the rendition of the same services (see Blair v Bartlett, 75 NY 150 ; Gates v Preston, 41 NY 113 ; see, also, Tillotson v Shulman, 73 AD2d 688 ), we nevertheless believe that the principles of res judicata and collateral estoppel can have no application where, as here, the underlying services and, perforce, the issues necessarily determined in the prior action were in no respect the same (cf. Blair v Bartlett, supra

1979Even if plaintiff had moved to amend the notice of claim, pursuant to subdivision 6 of section 50-e of the General Municipal Law, to assert an additional claim for false imprisonment, he would have been unsuccessful since the scope of subdivision 6 is not such as to permit assertion of an entirely new claim (in this case a cause of action for false imprisonment not related to the alleged assault) subsequent to expiration of the applicable statutory periods (see La Rocco v City of New York, 37 AD2d 529 , affd 29 NY2d 687 ; Dale v Half Hollow Hills School, Cent.

1979Even if plaintiff had moved to amend the notice of claim, pursuant to subdivision 6 of section 50-e of the General Municipal Law, to assert an additional claim for false imprisonment, he would have been unsuccessful since the scope of subdivision 6 is not such as to permit assertion of an entirely new claim (in this case a cause of action for false imprisonment not related to the alleged assault) subsequent to expiration of the applicable statutory periods (see La Rocco v City of New York, 37 AD2d 529 , affd 29 NY2d 687 ; Dale v Half Hollow Hills School, Cent.

1972Courts have traditionally adopted a liberal posture in the exercise of this discretion (Hasen v. Apsel, 17 Misc 2d 858 ; Bendan Holding Corp. v. Rodner, 245 App. Div. 723 ). “ The amendment in some cases may add a denial, or a counterclaim (Cohen v. Holmes, 191 App. Div. 396 ) or an entirely new defense, or both a defense and counterclaim” (6 Carmody-Wait 2d, New York Practice, § 34:20).

1972Courts have traditionally adopted a liberal posture in the exercise of this discretion (Hasen v. Apsel, 17 Misc 2d 858 ; Bendan Holding Corp. v. Rodner, 245 App. Div. 723 ). “ The amendment in some cases may add a denial, or a counterclaim (Cohen v. Holmes, 191 App. Div. 396 ) or an entirely new defense, or both a defense and counterclaim” (6 Carmody-Wait 2d, New York Practice, § 34:20).

1972Courts have traditionally adopted a liberal posture in the exercise of this discretion (Hasen v. Apsel, 17 Misc 2d 858 ; Bendan Holding Corp. v. Rodner, 245 App. Div. 723 ). “ The amendment in some cases may add a denial, or a counterclaim (Cohen v. Holmes, 191 App. Div. 396 ) or an entirely new defense, or both a defense and counterclaim” (6 Carmody-Wait 2d, New York Practice, § 34:20).

1934Damages ([9th ed. 1912], §§ 268 and 269) gives the following rule: “Where an entirely new standard of value is adopted by the government, the amount to be paid is found by giving such a sum in the new currency as shall be declared by law equal in value to the amount due in the old currency.” (See, also, Succession of Serralles v. Esbri, 200 U. S. 103 ; Anderson v. Equitable Life Assur.

1905(Bernheimer v. Hartmayer, 34 Misc.

1899Co., 58 N. Y. 248 ); and it would be establishing an entirely new rule of evidence if we were to hold that his declaration that he saw Pruey struck by one of the defendant’s locomotives was sufficient to establish negligence upon the part of the defendant, but that it might be disregarded or explained away, in so far as it tended to disprove a state of facts inconsistent with the exercise of care upon the part of the deceased.

1892Price v. Brown, 98 N. Y. 388 .

1876If it had been the intention of the court thus to decide, it would have overturned a long series of decisions, and especially the case of Dewitt v. Walton ( 9 N. Y., 571 ), to which I referred in the opinion of Green v. Skeel (supra), as not having been followed.