| Maiello v Kirchner |
| 2012 NY Slip Op 05805 [98 AD3d 481] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Joseph Maiello, Jr., Respondent, v Jason Kirchner,Appellant. |
—[*1] Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Ann Marie Caradonna of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals (1) from an orderof the Supreme Court, Suffolk County (Jones, Jr., J.), dated April 25, 2011, which granted theplaintiff's motion for summary judgment on the issue of liability, and (2), as limited by his brief,from so much of an order of the same court dated September 6, 2011, as, upon renewal andreargument, adhered to the original determination granting the plaintiff's motion for summaryjudgment on the issue of liability.
Ordered that the appeal from the order dated April 25, 2011, is dismissed, as that order wassuperseded by the order dated September 6, 2011, made upon renewal and reargument; and it isfurther,
Ordered that the order dated September 6, 2011, is reversed insofar as appealed from, on thelaw, with costs, upon renewal and reargument, the order dated April 25, 2011, is vacated, and theplaintiff's motion for summary judgment on the issue of liability is denied.
The plaintiff commenced this action to recover damages for personal injuries sustained whenthe defendant allegedly lost his balance and grabbed the plaintiff, causing the plaintiff to fallfrom an elevated porch in front of the plaintiff's house. In a related criminal prosecution based onthe same incident, the defendant pleaded guilty to assault in the third degree on the condition thathe would be placed on interim probation supervision upon the successful completion of whichthe district attorney would consent to a motion by the defendant to vacate the plea and wouldamend the charge to harassment in second degree in violation of Penal Law § 240.26 (1).After the defendant entered his conditional plea of guilty to assault in the third degree, theplaintiff moved for summary judgment on the issue of liability, seeking to invoke the doctrine ofcollateral estoppel to bar the defendant from relitigating the issue of his liability. In an orderdated April 25, 2011, the Supreme Court granted the plaintiff's motion for summary judgment onthe issue of liability, finding, among other things, that the defendant's allocution in the relatedcriminal matter [*2]established his civil liability for recklesslycausing the plaintiff's personal injuries.
The defendant moved for leave to renew and reargue, asserting, among other things, that hehad successfully completed his interim probation supervision, that his conditional plea of guiltyto assault in the third degree had been vacated, and that he had entered a plea of guilty to a chargeof harassment in the second degree, a noncriminal violation which should not be given collateralestoppel effect. In an order dated September 6, 2011, the Supreme Court, upon renewal andreargument, adhered to its original determination in the order dated April 25, 2011.
"Where a criminal conviction is based upon facts identical to those in issue in a related civilaction, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppelto bar the convicted defendant from relitigating the issue of his liability" (McDonald vMcDonald, 193 AD2d 590, 590 [1993]; see D'Arata v New York Cent. Mut. Fire Ins.Co., 76 NY2d 659, 664 [1990]; Cityof New York v College Point Sports Assn., Inc., 61 AD3d 33, 42 [2009]), regardless ofwhether the conviction resulted from a plea or a trial (see County of Suffolk v All County Paving Corp., 66 AD3d 630[2009]; Lili B. v Henry F., 235 AD2d 512 [1997]). "The party seeking the benefit ofcollateral estoppel bears the burden of proving that the identical issue was necessarily decided inthe prior proceeding, and is decisive of the present action" (City of New York v College PointSports Assn., Inc., 61 AD3d at 42; see Buechel v Bain, 97 NY2d 295, 304 [2001],cert denied 535 US 1096 [2002]). "The party against whom preclusion is sought bears theburden of demonstrating the absence of a full and fair opportunity to contest the priordetermination" (City of New York v College Point Sports Assn., Inc., 61 AD3d at 42).
Here, the Supreme Court erred in finding that proof of the defendant's conditional plea ofguilty to assault in the third degree was sufficient to satisfy the plaintiff's initial burden in seekingto invoke the doctrine of collateral estoppel. While the defendant's allocution during hisconditional plea of guilty was sufficient to satisfy the "identity of issue" requirement (see City of New York v College PointSports Assn., Inc., 61 AD3d 33 [2009]; Dunne v Lloyd, 40 AD3d 685, 686 [2007]; Blaich v Van Herwynen, 37 AD3d387 [2007]; Bazazian v Logatto, 299 AD2d 433, 434 [2002]), the plaintiff failed todemonstrate that the issue of liability was necessarily decided by reason of the conditional plea."Collateral estoppel can only be invoked when there is finality, i.e., a judgment of conviction"(People v Evans, 72 AD2d 751, 752 [1979]; see generally Ryan v New York Tel.Co., 62 NY2d 494, 500 [1984]; Calder v 731 Bergan, LLC, 83 AD3d 758, 759 [2011]). "It iselementary that there is no judgment until sentence has been imposed" (People v Evans,72 AD2d at 752). When the defendant was placed on interim probation supervision in exchangefor his plea of guilty to assault in the third degree, sentencing was adjourned (see CPL390.30 [6]). As the plaintiff failed to demonstrate that a judgment had been entered against thedefendant on the charge of assault in the third degree, he failed to satisfy his initial burden ofdemonstrating that the issue of liability was necessarily decided by reason of the defendant's pleaof guilty to that charge, such that the plea should be given collateral estoppel effect.
However, the Supreme Court properly determined that proof of the defendant's plea of guiltyto harassment in the second degree, upon which a judgment of conviction was entered, wassufficient to satisfy the plaintiff's initial burden of demonstrating that the issue of liability wasnecessarily decided in the related criminal proceeding (see Dunne v Lloyd, 40 AD3d at686; Blaich v Van Herwynen, 37AD3d 387 [2007]). In response, the defendant satisfied his burden of demonstrating "theabsence of a full and fair opportunity to contest the prior determination" (City of New York vCollege Point Sports Assn., Inc., 61 AD3d at 42; see Buechel v Bain, 97 NY2d at304). Under the circumstances of this case, in which the defendant ultimately pleaded guilty toharassment in the second degree, a noncriminal violation, the defendant no longer had the sameincentive to contest the charge against him and it cannot be said that he was given a full and fairopportunity to litigate the issue of liability (see Gilberg v Barbieri, 53 NY2d 285,291-294 [1981]). Accordingly, the Supreme Court erred in determining that the defendant wascollaterally estopped from litigating the issue of liability in the instant action by reason of therelated criminal proceeding.
Furthermore, the remaining proof submitted by the plaintiff in support of his motion failed toestablish, as a matter of law, that he was free from comparative negligence. The plaintiff's [*3]own testimony created a triable issue of fact as to whether hecontributed to the defendant losing his balance on the porch. Accordingly, the plaintiff failed tomake a prima facie showing that he was free from comparative fault (see Thoma v Ronai,82 NY2d 736, 737 [1993]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), andsuch failure requires the denial of the plaintiff's motion for summary judgment, regardless of thesufficiency of the defendant's opposition papers on that issue (Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Dillon, J.P., Leventhal, Austin and Roman, JJ.,concur.