(concurring). The question before this court is whether defendant Consolidated Edison Company of New York, Inc. (hereinafter Con Ed) should be precluded from litigating in this case the discrete issue of whether the July 13, 1977 electrical blackout, which occurred in New York City, was caused by its gross negligence, an issue which was decided adversely to it in the case of Food Pageant v Consolidated Edison Co. (54 NY2d 167). We must decide whether Con Ed should be collaterally es-topped from relitigating this issue. I agree with my colleagues, Justices O’Connor and Boyers, and with the majority in .the case from the Appellate Division, First Department, Goldstein v Consolidated Edison Co. (93 AD2d 589), that collateral estoppel should be applied. I *623voice a separate concurrence in order to highlight certain aspects of the controversy.
For an estoppel to attach to the question of gross negligence, that issue must be identical in this case and in the prior proceeding, it must have necessarily been decided in the prior proceeding, and defendant must have had a full and fair opportunity to litigate the issue in the prior proceeding (Gilberg v Barbieri, 53 NY2d 285, 291). Furthermore, the doctrine of collateral estoppel should never be applied mechanically. A case-by-case approach is necessary, keeping in mind the. doctrine’s underlying policy considerations of conserving the resources of courts and litigants, promoting the finality of judgments, and insuring fairness to all parties (see Gilberg v Barbieri, supra, p 291; Read v Sacco, 49 AD2d 471, 473).
My colleagues find, and I agree, that the issue of Con Ed’s gross negligence is identical in both this case and in Food Pageant (supra), and that such was necessarily decided in the Food Pageant action. The dissent concludes, however, that estoppel should not be applied because defendant has met its burden of showing that it did not have a full and fair opportunity to litigate the issue of the Food Pageant case, and/or the policy considerations underlying the doctrine of issue preclusion would not be furthered by applying it here. I disagree.
The Court of Appeals has listed some of the factors which should be examined in determining whether a party has had a full and fair opportunity to litigate an issue. “[T]he size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation” are all aspects to be considered (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 72). The dissent correctly points out that most of these factors, when applied here, tend to a conclusion that Con Ed did have a full and fair opportunity in the Food Pageant case to litigate the issue of gross negligence. That case was litigated from the Supreme Court, Bronx County, all the way to the Court of Appeals. The firm which represented defendant in Food *624Pageant (supra) was the same as in this case and includes some very distinguished and able attorneys. The scope of that litigation, if not the size of the damages, displays a great deal of initiative on defendant’s part. The existence of a compromise verdict is mere conjecture on defendant’s part, and there are no significant differences in applicable law. The existence of other litigation arising from the blackout has always been more than a possibility; it is an actuality. It can scarcely be said that counsel for defendant was unaware, during the Food Pageant case, of potential ramifications of losing that action.
Despite all of the above, the dissent concludes that the size of the Food Pageant verdict, relative to the size of the remaining claims, and so-called new evidence “weighs heavily in favor of refusing to treat Food Pageant (supra) as conclusive on the gross negligence issue”. It is true that the $75,000 claim in Food Pageant (supra) is small relative to the aggregate damages of over $200,000,000, claimed in more than 380 actions which Con Ed says are still pending against it as a result of the 1977 blackout. However, in and of itself, $75,000 is not a meager sum. As Justice Thompson states in his dissent with respect to the amount of the claim in Food Pageant (supra), “[tjhere is nothing in the record to cast doubt upon a conclusion that Con Ed defended the Food Pageant action to the best of its ability and with an appreciation of the close scrutiny of the case by the numerous other plaintiffs with pending actions generated by the blackout”.
Apparently, the amount of damages sought in Food Pageant (supra) is regarded by the dissent as not weighing on whether defendant fully litigated that case. Rather the view seems to be that it is unfair for a defendant in a multisuit situation to have to defend each action, no matter how small the damages involved, to the fullest of its ability in order to avoid collateral estoppel consequences. Why is this unfair? As the dissent notes, a victory for the defendant in one such matter, fully and fairly litigated, may provide the defendant with a strong argument for avoiding issue preclusion in further cases, because of the factor of inconsistency (see Vincent v Thompson, 79 Misc 2d 1029, 1044-1045, revd on other grounds 50 AD2d 211). *625Furthermore, the contention of unfairness, if upheld, would effectively result in collateral estoppel never being applied in multiple suit situations where the suits, in and of themselves, were fairly small in size, but in the aggregate constituted claims for a large sum of money. Given the policies behind the doctrine of issue preclusion, this is certainly not a desirable result (see Vincent v Thompson, supra, p 1045; Hart v American Airlines, 61 Misc 2d 41).
It is thus apparent that the size of the claim in Food Pageant (supra) is not such as to lead one to conclude that Con Ed did not have a full and fair opportunity to litigate the issue of gross negligence in that case, nor is it a factor upon which to base an argument that issue preclusion in this case would be otherwise unfair. I now turn my attention to the contention that Con Ed has new evidence which was not presented in the Food Pageant case.
It is true that the discovery of significant new evidence after a judicial determination may make collateral estoppel inappropriate (Vincent v Thompson, 50 AD2d 211, 221, supra). Defendant contends that certain investigative reports, which were not before the jury in Food Pageant (supra), strongly suggest that it was not grossly negligent. However, these reports are not newly discovered. In fact, they were all in existence by early 1978 and were a part of the evidence in the case of Lee v Consolidated Edison Co. (95 Misc 2d 120, revd 98 Misc 2d 304), which was decided on June 1, 1978. The Food Pageant case was tried from April 27 to May 9, 1979.
It is contended that Con Ed was prevented from presenting these reports during the Food Pageant trial. However, defendant has not shown this court any portion of the record of that trial which indicates that it offered any of these reports into evidence or even mentioned them to the Trial Judge. Significantly, the Court of Appeals in its decision in Food Pageant (54 NY2d 167, supra) did not mention any appellate issue concerning these reports.
It is, at least, arguable that important evidence which is improperly excluded in a prior case militates against estoppel attaching to issues in that case, even where the judgment therein is not appealed. However, where the evidence in question was possessed by the opponent of *626issue preclusion at the time of the prior case, and no attempt was made to have that evidence admitted, it makes no sense at all to say that that party, in this case Con Ed, was thereby not afforded a full and fair opportunity to litigate. Moreover, the policies of promoting fairness for all parties and of promoting judicial efficiency are hardly furthered by encouraging litigants to keep some evidence from the fact finder in the first case so that, if there is an adverse verdict, this “new” evidence can magically appear to prevent collateral estoppel.
Defendant’s primary argument in opposition to issue preclusion, which is accepted by my colleagues in the dissent, is that applying collateral estoppel would be unfair because there exist several previous judgments in cases stemming from the blackout which are in its favor. As a general proposition, there does seem to be “something fundamentally offensive about depriving a party of the opportunity to litigate the issue again when he has shown beyond a doubt that on another day he prevailed” (State Farm Fire & Cas. Co. v Century Home Components, 275 Ore 97, 110). If, in one case, the fact finder holds, for example, that a defendant was not negligent and then, in a subsequent case, involving another plaintiff, the fact finder concludes that the defendant was negligent, why then, other things being equal, should the courts give more credence to the letter verdict so as to estop further litigation of the negligence issue?
While not quarreling with the general proposition, I do not believe it applies here. The fact is other things are not equal and there is every reason to give more credence to the Food Pageant verdict than to other cases in which Con Ed emerged the victor. Each one of these other cases was a small claims action. The two reported cases, Lee v Consolidated Edison Co. (95 Misc 2d 120, supra) and Lo Vico v Consolidated Edison Co. (99 Misc 2d 897), reveal that the plaintiffs were pro se, although amicus curiae briefs were filed, apparently, with respect to certain legal issues. On the other side, Con Ed was represented by the same law firm appearing in this case. In Food Pageant (supra) the plaintiff was represented by counsel. A victory against an opponent who lacks expert legal advice, particularly with *627respect to presentation of key evidence which it is his burden to present, is not very noteworthy, whatever the forum. One can only wonder whether the plaintiffs in the small claims actions referred to by Con Ed were capable of presenting evidence of any quality or quantity on a subject as complex as the degree of Con Ed’s responsibility for the blackout.
The fact that these other determinations were in Small Claims Court is fatal to defendant’s argument. “By statute collateral estoppel effect is denied to * * * determinations in small claims actions (see section 1808 of the Uniform City Court Act, Uniform Justice Court Act and New York City Civil Court Act). Even in the absence' of statute, however, these minor suits are illustrative of the type of determination which, under accepted common-law principles, should not be held conclusive in later cases (see, e.g., Restatement, Judgments 2d [Tent Draft No. 4], § 68.1, subd [c], and Comment d)” (Gilberg v Barbieri, 53 NY2d 285, 293, supra). If small claims determinations are so lightly regarded as not to be accorded collateral estoppel effect, why then should they be accorded the equivalent status and respect given a contrary determination of the Supreme Court, which has been appealed to the highest court in the State, so as to prevent the latter from serving as a basis for issue preclusion? A judicial determination is given collateral estoppel effect because, among other things, we are reasonably certain of its correctness. Such certainty is not dispelled just because the opponent of issue preclusion can point to a contrary determination of such questionable value that, as a matter of law, it may not be considered credible enough to bind a party in a subsequent action.
The dissent maintains that it is unfair to let “[a] plaintiff with a substantial claim * * * to sit back and wait for a smaller case to proceed with the expectation that the defendant prevailing in the small case can be ignored because the plaintiff with the lesser claim lacked the ability to try the case to the fullest, yet if the defendant loses, collateral estoppel will apply because of the defendant’s knowledge of the pendency of the larger claim”. That would be unfair and is, perhaps, one of the reasons *628that collateral estoppel is, in fact, not applied in small claims actions. If defendant had lost in the small claims actions it refers to, it would still have had the right to litigate the issue of gross negligence in the subsequent Food Pageant case.
The dissent’s unfairness argument can be refuted by examining the alternative. It would be very unfair to allow a defendant, such as Con Ed in this case, to forever avoid the possibility of collateral estoppel in a multiple case situation just because it was able to win one or two minor cases in the Small Claims Court which, naturally enough, came to trial before any substantial case was heard in the Supreme Court. If defendant’s view is accepted, a $50 pro se suit by Jane Doe, brought because the plaintiff’s meat spoiled during the blackout, which is won by Con Ed because Jane Doe is, of course, no match for the counsel and experts commanded by Con Ed, must lead us to conclude that a subsequent verdict in Supreme Court against Con Ed for many thousands of dollars is of such doubtful validity that it may not result in issue preclusion.
It may be appropriate in another case, wherein some factors are present suggesting that the opponent of issue preclusion lacked a full and fair opportunity to previously litigate the issue in question, that the existence of inconsistent determinations, as exist here, should be accorded some weight, perhaps even to the extent of tipping the scales against issue preclusion. However, this is not such a case. As already seen, defendant has not, in any respect, persuasively argued that it did not have a full and fair opportunity in the Food Pageant case to litigate the question of its responsibility for the blackout.
There is one further aspect of this case which deserves comment. It is proposed that the offensive use of collateral estoppel should not be encouraged, in that, rather than promoting judicial economy, it has the effect of giving plaintiffs an incentive not to join in one action but to wait to see what happens in other actions (see Parklane Hosiery Co. v Shore, 439 US 322, 329-330). While, in some situations that might be true, it is no reason to absolutely prohibit the offensive use of collateral estoppel. Both the United States Supreme Court and our Court of Appeals *629have allowed plaintiffs to affirmatively use earlier judgments as conclusively deciding issues against opposing defendants (see Parklane Hosiery Co. v Shore, supra; B. R. DeWitt, Inc. v Hall, 19 NY2d 141). In any event, there should be no apprehension about allowing a plaintiff the benefit of collateral estoppel when his action is such that it could not easily be joined with other actions arising from the same incident (see Parklane Hosiery Co. v Shore, supra, p 331). Such is the situation here. The cases arising out of the 1977 blackout are simply too varied, particularly with respect to issues of causation and contributory negligence, to allow for joinder of any significant number of them.
In sum, then, the resettled order of Special Term should be affirmed insofar as appealed from. The finding by the jury in Food Pageant {supra) that Con Ed’s gross negligence caused the 1977 blackout should be given conclusive effect so as to preclude further litigation of that issue in this case.