| Dacey v City of New York |
| 2015 NY Slip Op 03313 [127 AD3d 1010] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Michael Dacey, Respondent, v City of NewYork, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow,Peter A. Mancuso, and Margaret G. King of counsel), for appellant.
Connors & Connors, P.C., Staten Island, N.Y. (David S. Heller of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Landicino, J.), dated July 24, 2013, whichdenied its motion pursuant to CPLR 3211 (a) (5) to dismiss so much of the complaint assought to recover damages for disability, lost earnings, and lost benefits.
Ordered that the order is affirmed, with costs.
On July 23, 2002, while working as a detective in the New York City PoliceDepartment, the plaintiff allegedly fell on a step on an interior staircase in the OneMarine Terminal Building in Brooklyn, and reinjured his left knee. The plaintiff allegedthat the defendant was negligent in failing to provide adequate lighting and properhandrails for the subject staircase. The defendant moved pursuant to CPLR 3211 (a) (5)to dismiss so much of the complaint as sought to recover damages for disability, lostearnings, and lost benefits, on the basis of collateral estoppel. The defendant argued that,in a prior administrative proceeding, the Medical Board of the Police Pension Funddetermined that the plaintiff's alleged disability was caused by previous line-of-dutyinjuries, and not the subject accident. The Supreme Court denied the defendant'smotion.
Contrary to the defendant's contention, it failed to establish that the issue in thepresent action is identical to that "necessarily decided" in the prior proceeding, and thatthe plaintiff was accorded a full and fair opportunity to contest the issue in thatproceeding (see generally Allied Chem. v Niagara Mohawk Power Corp., 72NY2d 271, 276 [1988]). Accordingly, the Supreme Court properly denied the defendant'smotion (see Warner v Adelphi Univ., 283 AD2d 486 [2001]; Kenny v NewYork City Tr. Auth., 275 AD2d 639, 640 [2000]; Jenkins v Meredith Ave.Assoc., 238 AD2d 477 [1997]; compare Pisano v New York City Bd. ofEduc., 303 AD2d 735 [2003]; Safchik v Board of Educ. of City of N.Y., 158AD2d 277 [1990]; Brugman v City of New York, 102 AD2d 413 [1984],affd 64 NY2d 1011 [1985]).
The defendant's remaining contention is without merit. Mastro, J.P., Austin, Cohenand Barros, JJ., concur.