| Vitello v Amboy Bus Co. |
| 2011 NY Slip Op 03232 [83 AD3d 932] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Grazia Vitello, Respondent, v Amboy Bus Co.,Appellant. |
—[*1] Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Jay Torrenzano of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated February19, 2010, as denied that branch of its motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the complaint isgranted.
The plaintiff, a school bus driver, allegedly was injured during the course of her employmentwhen the gas pedal of the bus she was operating on Seventh Avenue in Brooklyn became struck,causing the bus to collide with several parked vehicles. The plaintiff commenced this actionagainst the defendant bus company alleging, inter alia, that the defendant was negligent in itsmaintenance of the subject bus.
The defendant moved, inter alia, for summary judgment dismissing the complaint,contending that it was the plaintiff's employer and, thus, her claims were barred pursuant toWorkers' Compensation Law § 11. In opposition, the plaintiff contended that the defendantwas collaterally estopped from arguing that it was the plaintiff's employer, as the issue wasalready decided by the Workers' Compensation Board (hereinafter the WCB) in a notice ofdecision dated January 25, 2007 (hereinafter the decision). In the decision, the WCB concludedthat the plaintiff suffered a work-related injury and awarded her certain amounts incompensation. At the bottom of the decision, an entity named "Atlantic Express" was listed asthe plaintiff's employer. In the order appealed from, the Supreme Court, inter alia, denied thatbranch of the defendant's motion which was for summary judgment, finding that the defendantwas collaterally estopped from arguing that it was the plaintiff's employer. We reverse the orderinsofar as appealed from.
Under the doctrine of collateral estoppel, a party is precluded from "relitigating in a [*2]subsequent action or proceeding an issue clearly raised in a prioraction or proceeding and decided against that party or those in privity, whether or not thetribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494,500 [1984]). Two elements must be established: (1) that "the identical issue was necessarilydecided in the prior action and is decisive in the present action"; and (2) that the precluded party"must have had a full and fair opportunity to contest the prior determination" (D'Arata v NewYork Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Collateral estoppel is applicableto quasi-judicial determinations of administrative agencies, including the WCB (see Ryan vNew York Tel. Co., 62 NY2d at 499; O'Gorman v Journal News Westchester, 2 AD3d 815, 816 [2003];Rigopolous v American Museum of Natural History, 297 AD2d 728, 729 [2002]).
Here, the Decision of the WCB does not collaterally estop the defendant from arguing that itwas the plaintiff's employer, because there is no indication in the record that this was a disputedissue at the workers' compensation proceeding or that the WCB specifically adjudicated this issue(see Weitz v Anzek Constr. Corp.,65 AD3d 678, 679 [2009]; Caiola v Allcity Ins. Co., 257 AD2d 586, 587 [1999]).Therefore, the Supreme Court improperly concluded that the defendant was collaterally estoppedfrom arguing that it was the plaintiff's employer.
Moreover, the defendant established its prima facie entitlement to judgment as a matter oflaw. The defendant presented documentary evidence demonstrating that the plaintiff was itsemployee on the date of the accident and that Atlantic Express was the defendant's parentcompany which had purchased workers' compensation insurance for its subsidiary. In opposition,the plaintiff failed to raise a triable issue of fact (see Villatoro v Grand Blvd. Realty, Inc., 18 AD3d 647 [2005]).Accordingly, the Supreme Court should have granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint. Dillon, J.P., Florio, Chambers andMiller, JJ., concur.