Home Insurance Company of Illinois et al., Respondents, v. Capco Steel Corporation et al., Appellants, et al., Defendants

Home Insurance Company of Illinois et al., Respondents, v Capco Steel Corporation et al., Appellants, et al., Defendants. [699 NYS2d 865] [MAJORITY] —Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 22,1998, which denied defendant Capco Steel Corporation’s motion, and defendant Gordon L. Seaman, Inc.’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, with costs. The IAS Court correctly held that the doctrines of res judicata and collateral estoppel did not bar the instant action for breach of contract. The determination in the underlying action of issues involving assignment of liability for negligence in no way entailed determination of the clearly distinct presently litigated matter of whether defendants-appellants may be held liable for breach of contractual provisions requiring their purchase of insurance (see, McGill v Polytechnic Univ., 235 AD2d 400, 401-402). Concur — Nardelli, J. P., Williams, Mazzarelli, Wallach and Lerner, JJ.