Gatz v. Foster — 159 A.D.2d 482

Majority

p. 482

Walter Gatz et al., Respondents, v Arthur P. Foster, Appellant.

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, J.), entered February 7, 1989, which denied his motion to dismiss the complaint, without prejudice to renew upon the submission of further papers.

Ordered that the order is affirmed, with costs.

We find that the Supreme Court properly denied the defendant’s motion to dismiss the complaint, without prejudice to renew, since we are unable to conclusively determine, on the basis of the present record, whether the defendant was a party to the underlying contract or whether he may be held legally responsible for the damages resulting from the breach of that contract.

The judgment in favor of the plaintiffs in a prior lawsuit

p. 483

involving the subject contract does not preclude the prosecution of the instant action since the defendant was not a party to that lawsuit nor was that judgment satisfied (see, CPLR 3002 [a]). Mangano, J. P., Kunzeman, Eiber and Harwood, JJ., concur.