Mikoll, J. P. (concurring). I agree with the result reached by the majority but on different grounds than the doctrine of res judicata or claim preclusion. In my view the doctrine of collateral estoppel should not be applied in the instant circumstances because of notions of fairness and full opportunity to litigate enunciated in Matter of Halyalkar v Board of Regents (72 NY2d 261, 266, 268-269).
The statement that "this judgment does not concern the *44aspect of the case involving Mr. Czapko since Mr. Czapko is contesting the relief that we seek to obtain for [plaintiff]” is some evidence that the judgment was not to be preclusive against defendant George J. Czapko, Jr. pursuing his claim against defendant Michael Kilmurray and raises a factual issue as to whether Kilmurray and his parents (hereinafter collectively referred to as the insureds) intended to prevent Czapko from having the opportunity to contest his claim. The argument that the judgment entered upon the insureds’ consent precluded Czapko’s claim was not raised by plaintiff until submission of its final memorandum dated August 1, 1991 to Supreme Court on the pending motions. Moreover, in an earlier memorandum dated July 19, 1991 plaintiff stated that the consent judgment was entered pursuant to an offer of compromise and concluded, "[t]hus, only George Czapko, Jr. contests the coverage issue”. Admittedly, a copy of the consent judgment with notice of filing was not served on Czapko until July 17, 1991. Czapko’s time to appeal from that order then would not have expired prior to the date of Supreme Court’s order, August 14, 1991. Czapko’s claim that he did not have the opportunity to fully and fairly contest the consent judgment in Supreme Court appears to have substance.
Consequently, I would base the decision in this case primarily upon the fact that because Czapko stands in the shoes of the insureds and can have no greater rights than they have under the homeowner’s policy (see, 70 NY Jur 2d, Insurance, §§ 1706, 1713, at 792, 802-803), the entry of the consent judgment against the insureds extinguished their claim against plaintiff and with their claim, Czapko’s claim as well. As there is no defense, plaintiff is entitled to judgment against Czapko as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324).
Nor has Czapko otherwise raised an issue of fact. His statement made upon information and belief that the insureds did not have notice of off-premises coverage under the homeowner’s policy until January 10, 1991 is hearsay and not in admissible form sufficient to establish the facts asserted (see, Zuckerman v City of New York, 49 NY2d 557, 562). Thus, Czapko has not established the existence of any facts which would defeat plaintiff’s entitlement to the cross relief requested (see, supra). Further, whether the insureds had or did not have knowledge that Kilmurray’s parents had coverage is irrelevant because it cannot be imputed to plaintiff and, as previously noted, the consent judgment factually bars the *45insureds from making a claim under the policy arising from the incident.
Yesawich Jr., Mercure and Crew III, JJ., concur with Casey, J.; Mikoll, J. P., concurs in a separate opinion.
Ordered that the order is modified, on the law, without costs, by declaring that defendant George J. Czapko, Jr. is barred under the doctrine of claim preclusion from bringing a direct action against plaintiff pursuant to Insurance Law § 3420 (b) (1) to recover on any judgment he might obtain in his action against defendant Michael Kilmurray, and, as so modified, affirmed.