Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered September 25, 2007. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $1,517.25 as against defendant Terrianne Cooperman.

Judgment, insofar as appealed from, reversed without costs and matter remanded for a new trial as against defendant Terrianne Cooperman.

Plaintiff brought this action against defendant Terrianne Cooperman (defendant), plaintiff's upstairs neighbor, and Daniel Perla, defendant's lessor, for damages caused to plaintiff's apartment by a water leak that occurred in February 2006.^[FN1] At trial, plaintiff contended, in essence, that defendant had allowed her bathtub to overflow. In response, [*2]defendant denied that her bathtub had ever overflowed, and contended that the building, and her apartment in particular, had longstanding problems with old and deteriorated plumbing, including numerous concealed water leaks. Defendant attempted to submit testimony and documentary evidence of such problems. The Civil Court excluded defendant's proffered evidence on the ground that a July 7, 2006 order, issued in a nonpayment proceeding between Daniel Perla and defendant, established that any problems in defendant's apartment had been fixed by July 2006. Based on that order, the court found, in effect, that defendant was collaterally estopped from introducing any evidence of leaks or plumbing problems occurring prior to July 2006.

On appeal, defendant argues, among other things, that the Civil Court erred in finding that defendant was collaterally estopped from introducing evidence of leaks occurring prior to July 2006. We agree.

The doctrine of collateral estoppel only applies if the issue decided in the prior litigation is identical to the issue in the current litigation (see e.g. Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]). According to the evidence in the record, the July 7, 2006 order relied upon by the Civil Court decided, at most, that any plumbing problems in defendant's apartment had been cured by July 2006. However, the issue in this case was whether defendant had any hidden leaks or other plumbing problems in February 2006 which might have caused plaintiff's water damage. As there was no identity of issues between the two actions, the Civil Court should not have collaterally estopped defendant from introducing any relevant and admissible evidence of leaks and plumbing problems occurring before July 2006 (see e.g. Marino v Termini, 55 AD3d 882 [2008]; Sneddon v Koeppel Nissan, Inc., 46 AD3d 869 [2007]; Fischer v Sadov Realty Corp., 34 AD3d 632 [2006]).

Accordingly, we reverse the judgment, insofar as appealed from, and remand for a new trial as against defendant Terrianne Cooperman.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 24, 2009