Perez v. New York City Housing Authority

• Decision Date: 17 June 1982
• Citation: 452 N.Y.S.2d 510,114 Misc.2d 1055
• Parties: Louis PEREZ, an infant under 14 years by his mother and guardian ROSA PEREZ, and Rosa Perez, Plaintiffs, v. The NEW YORK CITY HOUSING AUTHORITY and Consolidated Edison Company of New York, Inc., Defendants.
• Court: New York City Court

Page 510

452 N.Y.S.2d 510

114 Misc.2d 1055

Louis PEREZ, an infant under 14 years by his mother and guardian ROSA PEREZ, and Rosa Perez, Plaintiffs, v. The NEW YORK CITY HOUSING AUTHORITY and Consolidated Edison Company of New York, Inc., Defendants.

Civil Court of the City of New York,

Kings County.

June 17, 1982.

Bernard Fintz, Brooklyn, for plaintiffs.

Langan & Levy, New York City, Anthony F. Russo, Trial counsel, Brooklyn, for defendant N. Y. City Housing Auth.

Ernest J. Williams, Barry S. Goldstein, Trial counsel, New York City, for defendant Consol. Edison.

DECISION

GABRIEL M. KRAUSMAN, Judge.

Defendant Con Edison moves for a judgment n.o.v. against plaintiff Louis Perez, summary judgment dismissing defendant New York City Housing Authority's (NYCHA) cross-claim for indemnification and granting its cross-claim for indemnification against NYCHA.

This is a factually uncomplicated slip and fall injury case arising out of the July 14, 1977 blackout which cut off electric power to millions of buildings and residents in the New York Metropolitan area including the NYCHA apartment complex at 1750 Prospect Place, in which plaintiff resided. The blackout rendered the building's elevators inoperable, caused the lights used to illuminate the windowless stairs to shut off thereby forcing the building's residents to climb up and down the darkened stairs to get in and out of the apartment house. At approximately 1:00 P.M. on the day of the blackout, plaintiff and his family, after purchasing some food, ascended the blackout darkened stairs to reach their third floor apartment. As the infant plaintiff neared the second floor landing and groped to find his way in the pitch black, he slipped and fell "face first" into an open door and was injured. At the close of plaintiff's case Con Edison moved to dismiss, contending that plaintiff failed to adduce any evidence that Con Edison was negligent in the causing of the accident. Based on the Court of Appeals decision in Food Pageant Inc. v. Consolidated Edison Co. Inc., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738 (1981) upholding a jury finding of gross negligence by Con Edison this Court ruled that defendant was collaterally estopped from litigating the issue of its gross negligence in causing the July, 1977 blackout. This Court also denied Con Edison's subsequent motion for summary judgment against plaintiff and NYCHA ruling that as a matter of law Con Edison owed a duty to plaintiff and NYCHA and could be found liable for injury resulting from its gross negligence. After trial the jury returned a verdict in favor of the plaintiff in the sum of $5,000.00 finding NYCHA 5% negligent, Con Edison 75% negligent and plaintiff 20% contributorily negligent.

I

Under the doctrine of collateral estoppel or issue preclusion a party may preclude an adversary from relitigating issues which that adversary had an opportunity to and did litigate in a prior action. It may be asserted either defensively, i.e., both parties to the subsequent action in which preclusion is sought were litigants in the prior proceeding where the issue was resolved, or offensively, i.e., one who was not a party or in privity to a party in a proceeding in which a determination was made with regard to a particular issue may in a subsequent action preclude his adversary from litigating that issue if the party against whom estoppel is sought was a litigant in the initial action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807 (1981); Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). Whether offensive use of collateral estoppel is appropriate in a particular case is left to the broad discretion of the trial court. Parklane Hosiery Co. v. Shore, 439 U.S. at 331, 99 S.Ct. at 651. In exercising discretion the trial court must consider whether there is an "identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, * * * a full and fair opportunity to contest the decision now said to be controlling." Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d at 71, 298 N.Y.S.2d 955, 246 N.E.2d 725; Gilberg v. Barbieri, 53 N.Y.2d at 290, 441 N.Y.S.2d 49, 423 N.E.2d 807. The party seeking preclusion bears the burden of showing identity of issue while the litigant opposing collateral estoppel must show that it did not have a full and fair opportunity to litigate the issue. Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d at 73, 298 N.Y.S.2d 955, 246 N.E.2d 725; B.R. De Witt, Inc. v. Hall, 19 N.Y.2d 141, 147, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967); Vincent v. Thompson, 50 App.Div.2d 211, 217, 377 N.Y.S.2d 118 (2d Dep't 1975).

Based on the Food Pageant decision plaintiff and NYCHA seek to preclude Con Edison from relitigating the sole issue of Con Edison's gross negligence in the causing of the July 14, 1977 blackout. Con Edison contends that because this action involves questions of liability for personal injury, superseding cause and comparative negligence which were not present in Food Pageant, the issue of gross negligence determined in Food Pageant is not identical to the issue sought to be precluded in this case and collateral estoppel cannot lie. This contention only seeks to confuse an otherwise clear issue. This Court's ruling with regard to collateral estoppel was limited solely to the issue of Con Edison's gross negligence in precipitating the blackout. The jury was specifically charged that the court ruled as a matter of law only with regard to Con Edison's negligence in causing the blackout and that it was for the jury to determine if given that ruling Con Edison could be found liable for the injury and if yes, to what extent.

To invoke collateral estoppel it is only required that the issue given preclusive effect be dispositive of the particular issue sought to be precluded, not of ultimate liability with regard to all issues in the case. Shanley v. Callanan Inds. Inc., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 429 N.E.2d 104 (1981). In this case the Food Pageant verdict is dispositive with regard to the particular issue of Con Edison's gross negligence in the causing of the blackout and it was for the jury to determine, taking into account all the evidence before it, whether that negligence subjected Con Edison to any liability. The sole issue of gross negligence determined in Food Pageant and sought to be precluded in this case is identical and it is crystal clear that the prior determination is dispositive of that issue in this action. See Whitestone Packing Corp. v. Consolidated Edison Co. of N.Y., N.Y.L.J., p. 12 col. 3 (Sup.Ct. Bronx Co. February 25, 1982). Plaintiff has made the requisite showing of identity of issue.

In determining whether Con Edison had a full and fair opportunity to litigate the issue of gross negligence "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, differences in the applicable law and foreseeability of future litigation" must be considered. Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d at 72, 298 N.Y.S.2d 955, 246 N.E.2d 725. Con Edison does not now contend that issue preclusion based on Food Pageant is unfair and a denial of due process because of the incompetence of counsel, foreseeability of future litigation, new evidence, forum or extent of the prior litigation. Indeed Con Edison readily states that the blackout gave rise to over five hundred claims involving hundreds of millions of dollars. It realized the possible ramifications of an adverse determination on the issue of gross negligence and there is no doubt that Con Edison vigorously defended against each claim. Con Edison gave it their best shot and the Food Pageant jury found grossly negligent conduct. The verdict was left intact after all appeals were exhausted. It is argued that to afford the Food Pageant finding preclusive effect is patently unfair in view of the fact that Food Pageant : 1) is inconsistent with a number of prior judicial determinations favorable to Con Edison; 2) was a compromise verdict; 3) this claim, unlike that in Food Pageant, involves different questions of fact and law, e.g., intervening and proximate cause. The unfairness, it is contended, is compounded by virtue of the fact that this is a multiple claimant circumstance and Con Edison is vulnerable to extensive liability.

Aware of the possible unfairness that may result and adhering to the admonition of the Court of Appeals to not reduce to an inflexible formula "the question as to whether a party has had a full and fair opportunity to contest a prior determination" Gilberg v. Barbieri, 53 N.Y.2d at 292, 444 N.Y.S.2d 49, 423 N.E.2d 807 this Court finds the application of collateral estoppel appropriate. The prior determinations cited by Con Edison as being favorable to them were brought in the main in the small claims part of this court by private claimants unrepresented by counsel. The New York City Civil Court Act § 1804 (NYCCCA) provides that actions brought in the small claims part of the court be informal and simplified and that the rules of disclosure, practice, procedure, pleading and evidence are not to be strictly adhered to. Recognizing the relaxed nature of the small claims proceeding NYCCCA § 1808 provides: "A judgment obtained under this Article ... shall not ... be deemed an adjudication of any fact at issue or found therein in any other action or court." (Emphasis provided.) A reading of the cases cited by Con Edison reveals that offers of proof in those cases, by claimants, with regard to the issue gross negligence were at best feeble. It is precisely because the offers of proof...