Gilberg v. Barbieri

• Decision Date: 16 June 1981
• Citation: 441 N.Y.S.2d 49,53 N.Y.2d 285,423 N.E.2d 807
• Parties: , 423 N.E.2d 807 David C. GILBERG, Respondent, v. Joseph P. BARBIERI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 49

441 N.Y.S.2d 49

53 N.Y.2d 285, 423 N.E.2d 807

David C. GILBERG, Respondent, v. Joseph P. BARBIERI, Appellant.

Court of Appeals of New York.

June 16, 1981.

Joseph F. Longo, Joseph G. Goubeaud, Jr., and Mary Ellen Manley, Mount Vernon, for appellant.

David C. Gilberg, Mount Vernon, respondent pro se.

OPINION OF THE COURT

WACHTLER, Judge.

The question on this appeal is whether a conviction for the petty offense of harassment can later be used to preclude the defendant from disputing the merits of a civil suit for assault, involving the same incident and seeking a quarter of a million dollars in damages. The Trial Court held that collateral estoppel precluded the defendant from contesting the merits of the civil complaint and that the plaintiff was therefore entitled to summary judgment on the liability issue. The Appellate Division affirmed with one dissent and granted the defendant leave to appeal to this court on a certified question concerning the correctness of its order.

Plaintiff is a lawyer who for many years had been representing defendant's former wife in various matrimonial proceedings involving the defendant. In February, 1976 he called the defendant to appear for an examination before trial in connection with a claimed breach of a separation agreement. Defendant arrived at plaintiff's office without an attorney and repeatedly refused to answer questions until he had retained a lawyer. After several minutes of unproductive questioning plaintiff granted defendant an adjournment and shouted at him to get out of his office. Defendant then came around the desk toward the plaintiff and the two men scuffled until pulled apart by the plaintiff's sons. The plaintiff recovered the defendant's glasses and threw them at him. As he left, the defendant reciprocated by throwing plaintiff's glasses at him.

Plaintiff filed an information accusing defendant of harassment, a petty offense designated a violation by the Penal Law. ^* A nonjury trial was held in the City Court of Mount Vernon on the afternoon of July 27, 1976. The plaintiff testified that after he told the defendant to leave the defendant stood up, came around to where the plaintiff was seated behind his desk and repeatedly "pummelled" him. The defendant stated that he had merely shoved the plaintiff in self-defense when the plaintiff shouted at him to get out and reached, in a threatening manner, toward a hard object on his desk. The stenographer, called by the People, testified that both men rose from their chairs and grappled after a heated exchange. She claimed, however, that the defendant struck the first blow.

During the brief trial the court informed defense counsel that a felony hearing was scheduled to begin when this trial concluded. At the close of arguments for both sides the court immediately found the defendant guilty of harassment for "using physical force against" the plaintiff. The court noted, however, "You're not found guilty of a crime, it's a violation. It's merely a pushing or shoving of somebody, it's not assault third degree." The court also immediately sentenced the defendant to a one-year conditional discharge, the condition being that "you are not to have any encounters with the law firm of Gilberg and Gilberg whether you like it or not." The court strongly suggested that the defendant retain a lawyer to act as his spokesman in future dealings with his former wife's attorneys.

The plaintiff then commenced this civil action for assault. The summons was issued the day following the defendant's conviction for harassment. The complaint, subsequently served, alleges that the defendant "assaulted and beat" the plaintiff "by striking him repeatedly". A quarter of a million dollars in damages are sought for injuries which allegedly include emotional distress, "injuries to head, face, arm and chest, causing discomfort, massive sweating, diarrhea, nausea" and aggravation of a preexisting heart condition.

After the case had been placed on the jury calendar plaintiff moved for summary judgment noting that the defendant had previously been convicted of harassment as a result of this incident and contending that therefore there was no "issue as to the assault for determination by a court or jury". The trial court agreed that at the prior City Court proceeding defendant "was afforded a full and fair opportunity to litigate the very issue raised upon this motion * * * viz, did defendant lay violent hands upon plaintiff" and, noting the City Court Judge's finding that defendant used "physical force against" the plaintiff, concluded that defendant's liability is "no longer disputable". Accordingly the court granted the motion for summary judgment against the defendant on the issue of liability and ordered the matter to proceed on the issue of damages alone.

The Appellate Division, 74 A.D.2d 913, 426 N.Y.S.2d 72 affirmed in a memorandum in which it concluded that all the requirements necessary to invoke the doctrine of collateral estoppel had been met in this case. Specifically the court found that the factual issue necessarily decided in the harassment action was identical and decisive of the present action. The court also stated that the defendant had a full and fair opportunity to contest the accusation of harassment at his trial in the City Court. One Justice dissented primarily on the ground that the defendant had been deprived of his right to a jury trial which, although not available to him on the harassment charge, was constitutionally and statutorily guaranteed to him in the civil action for money damages.

The doctrine of collateral estoppel is based on the notion that it is not fair to permit a party to relitigate an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point (see, e. g., Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 69, 298 N.Y.S.2d 955, 246 N.E.2d 725; People v. Lo Cicero, 14 N.Y.2d 374, 380, 251 N.Y.S.2d 953, 200 N.E.2d 622; People v. Berkowitz, 50 N.Y.2d 333, 344, 428 N.Y.S.2d 927, 406 N.E.2d 783). Properly utilized it also serves to conserve the resources of courts and litigants. Because the doctrine is based on general notions of fairness there are few immutable rules.

Due process, of course, would not permit a litigant to be bound by an adverse determination made in a prior proceeding to which he was not a party or in privity with a party (Postal Tel. Cable Co. v. Newport, 247 U.S. 464, 38 S.Ct. 566, 62 L.Ed. 1215; Provident Bank v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936). Until recently the prior determination generally could not even be used against a party to the prior suit unless his current opponent had also been a party who would have been mutually bound by the determination had it been unfavorable to him (see Siegel, New York Practice, § 460). In 1967, however, we held that mutuality of estoppel "is a dead letter" in this State (B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141, 147, 278 N.Y.S.2d 596, 225 N.E.2d 195) and subsequently in Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725, supra) indicated that "New York law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling" (but, also, see People v. Berkowitz, supra, preserving the mutuality concept in criminal cases). The rejection of the mutuality principle in civil actions also undermined the rule, which had long prevailed in this State, that a conviction in a criminal case could not be given conclusive effect in a subsequent civil suit (Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711). That rule was abandoned in 1973 (S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105).

These developments were not merely a remodeling of a rigid mechanism with fewer parts. In the Schwartz case and subsequent decisions it was emphasized that historically and necessarily collateral estoppel is a flexible doctrine which can never be rigidly or mechanically applied (Schwartz v. Public Administrator of County of Bronx, supra, 24 N.Y.2d at p. 73, 298 N.Y.S.2d 955, 246 N.E.2d 725; People v. Berkowitz, 50 N.Y.2d 333, 344, 428 N.Y.S.2d 927, 406 N.E.2d 783 supra; People v. Plevy, 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518). The question as to whether a party has had a full and fair opportunity to contest a prior determination cannot be reduced to a formula. It cannot, for instance, be resolved by a finding that the party against whom the determination is asserted was accorded due process in the prior proceeding (People v. Plevy, 52 N.Y.2d 58, 65, 436 N.Y.S.2d 224, 417 N.E.2d 518, supra). The point of the inquiry, of course, is not to decide whether the prior determination should be vacated but to decide whether it should be given conclusive effect beyond the case in which it was made (see, e. g., Restatement, Judgments 2d (Tent. Draft No. 3), § 88, Comment i ).

Thus we noted in the Schwartz case 24 N.Y.2d at p. 72, 298 N.Y.S.2d 955, 246 N.E.2d 725 that when collateral estoppel is in issue, the question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into "the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the 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,...