Carucci v. Hanna

— Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: Defendants have appealed from an order directing them to accept service of a tardy complaint and denying their cross motion to dismiss the action pursuant to CPLR 3012 (subd [b]). Since plaintiffs have not met their burden of showing that they have a meritorious claim the order must be reversed and the action dismissed. The issue of the alleged wrongful conduct of defendants was previously litigated in Carucci v City of Utica ( 60 AD2d 747 , mot for lv to app den 44 NY2d 814 , mot for rearg den 45 NY2d 776 ). In that proceeding it was found that defendants’ actions in- letting certain city contracts were legal and proper. There having been a fair and full opportunity to litigate this issue by a party with whom the present plaintiffs are in strict privity they are foreclosed from relitigating the previous determination (Watts v Swiss Bank Corp., 27 NY2d 270 ; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65 ). Since plaintiffs would be collaterally estopped or "issue-precluded” (Matter of Reilly v Reid, 45 NY2d 24 , 31) from claiming that defendants acted wrongfully, they are unable to demonstrate that their claim has merit. Absent such a showing, the motion to compel defendants to accept the untimely service of plaintiff’s complaint should not have been granted (Manfreda v Kendall Agency, 57 AD2d 727 , 728). (Appeals from order of Oneida Supreme Court — serve complaint.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Witmer, JJ.