Gilberg v. Barbieri
| Decision Date | 31 March 1980 |
| Citation | 74 A.D.2d 913,426 N.Y.S.2d 72 |
| Parties | David C. GILBERG, Respondent, v. Joseph P. BARBIERI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph G. Goubeaud, Jr., Mount Vernon (Longo & Torrisi, Joseph F. Longo, Mount Vernon, of counsel; Mary Ellen Manley, Mount Vernon, on the brief), for appellant.
Gilberg & Gilberg, Mount Vernon (David C. Gilberg, Mount Vernon, pro se of counsel), for respondent.
Before HOPKINS, J. P., and TITONE, LAZER and GIBBONS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., arising out of an assault, defendant appeals from an order of the Supreme Court, Westchester County (GAGLIARDI, J.), dated July 13, 1979, which granted plaintiff's motion for summary judgment on the issue of liability.
Order affirmed, with $50 costs and disbursements.
Plaintiff's motion for summary judgment is based upon the doctrine of collateral estoppel. It is well established that to invoke collateral estoppel, " 'there must be (1) an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and * * * (2) a full and fair opportunity to contest the decision now said to be controlling' " (S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 304, 344 N.Y.S.2d 938, 941, 298 N.E.2d 105, 107; Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 959, 246 N.E.2d 725, 728; Read v. Sacco, 49 A.D.2d 471, 473, 375 N.Y.S.2d 371, 374). In the instant case, the record establishes that the facts upon which the defendant's conviction for the violation of harassment rested are the identical facts which must be proved for plaintiff to recover damages for personal injuries sustained by an intentional assault. In addition, defendant was afforded a full and fair opportunity to contest the accusation of harassment at his trial. Under these circumstances, the conviction of harassment is conclusive proof of the defendant's liability in the subsequent action to recover damages for intentional assault (see S. T. Grand, Inc. v. City of New York, supra ). Accordingly, his liability is established as a matter of law.
HOPKINS, J. P., and TITONE and LAZER, JJ., concur.
GIBBONS, J., dissents and votes to reverse the order and deny the motion, with the following memorandum:
In this action to recover damages in the amount of $250,000, the plaintiff alleges that during an altercation between the parties in his office the defendant beat him by striking him with his "fists, hands and body".
Prior to the commencement of this action, the defendant, upon plaintiff's complaint, was convicted of the offense of harassment (Penal Law, § 240.25, subd. 1), arising out of the same altercation, after a nonjury trial in the Mount Vernon City Court in which the Trial Judge found the defendant guilty "of using physical force against" the plaintiff.
On plaintiff's motion for summary judgment, he asserted that there is no triable issue presented for the reason that the defendant is collaterally estopped from again litigating the same issue herein by virtue of the judgment of the Mount Vernon City Court convicting him of the offense of harassment.
In opposing this motion, the defendant claimed, inter alia, that to permit the plaintiff to use the City Court judgment to collaterally estop him from litigating the issues in this action would be to deprive him of his constitutional right to a jury trial and, further, that due to the status of the offense of harassment as a violation, the defendant's case was handled in a summary fashion in the City Court as opposed to the safeguards of a complete trial on the merits before a jury as would be afforded the defendant in this action in the Supreme Court.
The plaintiff's motion for summary judgment on the issue of liability was granted by Special Term and the court directed that the matter proceed for an assessment of damages. The question now presented is whether a judgment of conviction of the violation of harassment under section 240.25 (subd. 1) of the Penal Law, rendered after a nonjury trial in the City Court of Mount Vernon, may collaterally estop a defendant from litigating the issues in the Supreme Court in an action for damages arising out of the same altercation. I think not for the following reasons:
Under the Sixth and Seventh Amendments of the Constitution of the United States and section 2 of article I of the New York State Constitution, trial by jury is guaranteed. Section 4101 (subd. 1) of the CPLR expressly provides that issues of fact in a civil action which may result in a judgment for a sum of money only, as is the case here, shall be tried by jury unless waived. Such right, however, is not accorded to a defendant in a prosecution for the offense of harassment. Under section 240.25 of the Penal Law, harassment is designated as "a violation", and section 10.00 (subd. 3) of the Penal Law declares that " '(v)iolation' means an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed." Inasmuch as the maximum punishment for the offense of harassment is imprisonment for a period of less than six months and, therefore, below the grade of a misdemeanor and not deemed to be a "serious offense", there is no right to trial by jury (Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 1450, 20 L.Ed.2d 491; Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; CPL 340.40).
The resolution of the question presented involves a consideration...
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Gilberg v. Barbieri
...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 ha......