Gano v. White

• Decision Date: 29 January 2019
• Docket Number: Index E2018003402
• Citation: 2019 NY Slip Op 34571 (U)
• Parties: TARRYL GANO, Plaintiff, v. RICKY WHITE, JR., Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 34571(U)

TARRYL GANO, Plaintiff, v. RICKY WHITE, JR., Defendant.

Index No. E2018003402

Supreme Court, Monroe County

January 29, 2019

Unpublished Opinion

BENCH DECISION AND ORDER

J Scott Odorisi, Judge

This lawsuit arises out of a 2011 crime. Pending before this Court are the following: (1) Plaintiff's October 4, 2018 motion [NYSCEF Docket # 5 - Motion # 1] for partial summary judgment in his favor on liability and dismissal of Defendant's affirmative defenses; (2) Defendant's October 9^th discovery motion [NYSCEF Docket # 7 - Motion # 2]; and, (3) Defendant's January 4^th cross-motion [NYSCEF Docket # 45 -Motion # 4] for summary judgment, or in the alternative, partial summary judgment. This Court: DENIES Plaintiff's motion GRANTS Defendant's discovery motion and, DENIES Defendant's cross-motion - all for the reasons set forth hereinafter.

LEGAL DISCUSSION

Plaintiff's Partial Summary Judgment Motion

Plaintiff is not entitled to partial summary judgment on liability (see CPLR 3212 (e)), and also may not have all of the defenses dismissed. See CPLR 3211 (b).

To start, this Court agrees with Defendant that Plaintiff's motion is premature as it was interposed before discovery was done, and while Plaintiff's numerous responses were overdue. See CPLR 3212 (f); Freierv. Amax, Inc., 217 A.D.2d 981 (4th Dept 1995) (Supreme Court did not abuse its discretion in denying summary judgment so that discovery could take place); Buffamante Whipple Buttafaro Certified Pub. Accountants, P.C. v. Dawson, 118 A.D.3d 1283, 1284 (4th Dept 2014) (reversing granted summary judgment motion based upon CPLR 3212 (f)); Freier v Amax, Inc., 217 A.D.2d 981 (4th Dept 1995) (Supreme Court properly denied summary judgment so that discovery could take place). As will be explained hereinafter, discovery, including depositions [especially Plaintiff's], is needed to flush out many issues of fact. See e.g. Genesee/Wvominq YMCA v. Bovis Lend Lease LMB. Inc., 98 A.D.3d 1242, 1245 (4th Dept 2012) (reversing summary judgment award so that depositions could take place); Coniber v. Ctr. Point Transfer Sta., Inc., 82 A.D.3d 1629 (4th Dept 2011) (Supreme Court properly concluded that it was premature to grant summary judgment in view of the limited discovery that was conducted); Syracuse Univ. v. Games 2002, LLC. 71 A.D.3d 1531, 1531-1532 (4th Dept 2010) (summary judgment motion was premature because discovery was not complete, including depositions).

Even considering the motion's merits, it still falters as Plaintiff did not meet his burden of proof. See generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Dix v. Pines Hotel, Inc., 188 A.D.2d 1007 (4th Dept 1992).

To begin with, one of Plaintiffs key exhibits - a witness police statement saying Defendant punched Plaintiff [NYSCEF Docket # 27] - is hearsay and is thus not in admissible form. See Friends of Animals. Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1068 (1979) (reinforcing "strict requirement" that moving proof must be in admissible form); Stevens v. Kirby, 86 A.D.2d 391, 395 (4th Dept 1982) (police report was inadmissible hearsay).

Also, this Court disagrees with Plaintiff that offensive collateral estoppel mandates multiple liability findings in his favor. See e.g. Pink v. Ricci, 100 A.D.3d 1446, 1447 (4th Dept 2012) (the trial court erred in granting the plaintiffs' motion for partial summary judgment on liability).

The Court of Appeals as described the subject legal doctrine as follows:

Collateral estoppel, an equitable doctrine, is based upon the general notion that a party . . . should not be permitted to relitigate an issue decided against it. . . As this doctrine has evolved, only two requirements must be satisfied. First, the party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action . . . Second, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination . . . Collateral estoppel, we have held, is grounded on concepts of fairness and should not be rigidly or mechanically applied . . .

D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 (1990) (internal citations omitted and emphasis added).

A criminal conviction - even one based upon a guilty plea - may serve as collateral estoppel in a subsequent civil litigation, but only if there is an identity of issues and a full and fair opportunity to litigate. See Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45 (1991); Vavolizza v. Krieaer, 33 N.Y.2d 351, 355-356 (1974).

Here, Plaintiff did not demonstrate an identify of issues to affix Defendant's liability as a matter of law. See Winearad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985); Murray v. Sterner, 218 A.D.2d 334, 336 (4th Dept 1995) (trial court erred in applying the doctrine of collateral estoppel against the defendant). Defendant was not charged with menacing or harassment (see Penal Law {"PL"} §§ 120.13-120.15; 240.25-240.31), any form of assault (PL Art. 120), or false imprisonment. See PL §§ 135.10-135.20. Rather, Defendant was charged - as only an accomplice - with Robbery in the Second Degree per PL §§ 20.00 and 160.10 (1) [NYSCEF Docket # 52]. As Defendant was charged with, and pleaded guilty, under an accomplice theory, he may not have actually engaged in any offending criminal conduct directly against Plaintiff. In fact, Defendant admitted no such thing during the plea allocution [NYSCEF Docket # 29]. See e.g. Davis v. Hanna, 97 A.D.2d 943, 944 (4th Dept 1983) (because the criminal plea minutes do not set forth a factual basis for the offenses, it was error to apply collateral estoppel based upon the same).

More importantly, the elements of Robbery in the Second Degree do not fulfill all of the elements of the current civil claims of battery, assault, false imprisonment, and intentional infliction of emotional distress. Cf. S. T. Grand, Inc. v. City of New York. 32 N.Y.2d 300 (1973) (bribery conviction dealing with specific contract proved that the same was illegal in later civil litigation) [NYSCEF Docket # 25, p. 4]. The relevant PL Section provides that:

A person is guilty of robbery in the second degree when he forcibly steals property and when:

1. He is aided by another person actually present Penal Law § 160.10 (1). Compare with PL § 160.10 (2) (a) (physical injury is an element).^[1]

Forcible stealing is defined as:

. . . when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

Penal Law § 160.00 (emphasis added).

As can be seen by the statute's plain wording, forcible stealing need not involve actual use of physical force.

With the foregoing crime elements in mind in reviewing Defendant's plea colloquy, his limited admissions concerning an accomplice liability robbery are wholly insufficient to satisfy the liability components of Plaintiff's four civil claims. See PJI 3:2, 3:3, 3:5, 3:6. Further, Defendant's plea minutes do not contain any express waiver of potential defenses, such as, but not limited to, intoxication and/or lead paint poisoning. Taken as a whole, Plaintiff's exclusive reliance on the accomplice robbery plea to set liability is misplaced. See e.g. Innovative Transmission & Engine Co., LLC v. Massaro, 63 A.D.3d 1506, 1508 (4th Dept 2009) (collateral estoppel doctrine did not apply regarding prior criminal trial).

Additionally, and to the extent that Plaintiff's liability contentions encompass the issue of causation of any type of injuries, the issue of proximate cause is generally a factual question for a jury. See Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 312 (1980); Bd. of Trustees of IBEW Local 43 Elec. Contractors Health and Welfare, Annuity and Pension Funds v. D'Arcanqelo & Co., LLP, 124 A.D.3d 1358 (4th Dept 2015). See also Coleman v. Wilson. 28 A.D.3d 1198, 1199 (4th Dept 2006) (summary judgment was not appropriate due to a triable issue of fact with respect to causation). Furthermore, Plaintiff does not submit any expert medical proof to substantiate his alleged physical and mental injuries, and Plaintiff is not qualified to do so in his own lay affidavit. See Dann v. Yeh, 55 A.D.3d 1439, 1441 (4th Dept 2008).

In the alternative, Defendant's opposition raised material issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Defendant's exhibits call into question the exact events of the. interaction between Plaintiff and Defendant [NYSCEF Docket #'s 52-54, 57], ^[2] This conflict in factual accounts creates a credibility question reserved for a jury to resolve [compare NYSCEF Docket # 34 with NYSCEF Docket # 57]. See S. J. Capelin Assoc. Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974); Craft v. Maier, 167 A.D.2d 933 (4th Dept 1990). Furthermore, Defendant's expert medical proof further creates a question of fact over his mental state relevant to each civil claim [NYSCEF Docket #'s 56 & 58].

Besides not getting a favorable liability adjudication, Plaintiff also cannot have all of Defendant's defenses dismissed via CPLR 3211 (b) under the liberal pleading standard. See CPLR 3026; Leon v. Martinez. 84 N.Y.2d 83, 87 (1994) (motion to dismiss should have been denied); 190 Murray St. Assoc. LLC, v. City of Rochester, 19 A.D.3d 1116 (4th Dept 2005) (reversing order granting motion to dismiss). More specifically, De...