Pires v. Frota Oceanica Brasileira, S.A.

Order, Supreme Court, New York County (Edward Greenfield, J.), entered on or about April 5, 1996, which granted defendants-respondents’ motion to vacate a judgment of same court and Justice entered on or about May 19, 1995 against them and in favor of defendant-appellant, unanimously affirmed, without costs.

Although in Pires v Frota Oceánica Brasileira (214 AD2d 306) we held that plaintiffs’ action against defendants-respondents herein was to be dismissed on the ground of res judicata, defendant-appellant argues that the earlier fact finding in the main action against defendants-respondents should be binding as to defendant-appellant’s claim against them for indemnification on its liability to plaintiffs for maintenance and cure (see, Pires v Frota Oceánica Brasileira, 240 AD2d 323 [decided herewith]). The IAS Court properly rejected this contention in the present circumstances because the judgment in favor of plaintiffs was the basis for the judgment on the indemnification cross-claim (cf, Springer v Clark Publ. Co., 191 AD2d 922, lv dismissed 82 NY2d 706). Further, the trial court conceded it was mistaken as to the nature of defendant-appellant’s stipulation with defendants-respondents and that that misunderstanding was incorporated into the resulting judgment, so as to warrant vacatur thereof (see, Graubard Molten Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 234 AD2d 49). We have considered defendant-appellant’s remaining argument and find it to be without merit. Concur— Sullivan, J. P., Milonas, Williams and Tom, JJ.