The current action arises from the failure of the Court to address this
crucial issue. It was simply not litigated even though timely raised.
Restatement of the Law (Second) Judgments 2d, Section 26, Item f states, (in
describing where there is a possible basis for a second action) "It is,
clearly and convincingly shown that the policies favoring preclusion of a second,
action are overcome for an extraordinary reason, such as…the failure of the
prior litigation to yield a coherent disposition of the controversy."
The Restatement in Section 27, Item d , in discussing when an issue is actually
litigated states, "When an issue is properly raised, by the pleadings or
otherwise, and is submitted for determination, and is determined, the issue is
actually litigated within the meaning of this Section."
The Plaintiff’s raised the issue of crime properly. It was never commented
upon or determined. Given that crime is the issue, the Court is very much
obligated to address the issue. The Plaintiff’s raised this issue several
times in chambers with the Judge and it was ignored. The current lawsuit was in
response to this failure to address the issue.
3. Defendant’s Item 4 claims that "All issue about the validity and
legality of the settlement, including its confidentiality provisions, were
already argued and adjudicated with finality.
This it not true. "All issues" were most definitely not adjudicated. Only the issue of
the plaintiff’s position that the contract should have been vacated due to the
fact that it was signed only under coercion was decided. The Court did not
mention the issue of the crime.
4. In Defendant’s Item 5, reliance is placed on Schwartz v. Public
Administrator of the Bronx, 24 NY2d 65, 71, 298 NYS2d 955 (1969) for the
position that the General Release
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