Read v. Sacco

• Decision Date: 24 November 1975
• Citation: 375 N.Y.S.2d 371,49 A.D.2d 471
• Parties: Roland READ, Respondent, v. Dominick SACCO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 371

375 N.Y.S.2d 371

49 A.D.2d 471

Roland READ, Respondent, v. Dominick SACCO, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 24, 1975.

Greenblatt & Neuman, P.C., Newburgh, for appellant.

Finkelstein, Mauriello, Kaplan & Levine, P.C., Newburgh (Howard Karger, Newburgh, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN, CHRIST and MUNDER, JJ.

HOPKINS, Acting Presiding Justice.

The plaintiff sues to recover damages for personal injuries claimed to have been suffered by him as the result of an assault and battery. After the initiation of the action the defendant was convicted on the complaint of the plaintiff of the crime of assault in the third degree, after a jury trial, in the Justice Court of the Town of Newburgh and was sentenced to a fine of $25. The conviction was affirmed by the Appellate Term and leave to appeal was denied by the Court of Appeals. ¹ Thereafter, the plaintiff moved for summary judgment and the motion was granted on the theory that the material issues had been litigated and determined against the defendant in the criminal proceeding. On reargument, the Special Term adhered to the determination. The defendant has appealed. We affirm. Under the doctrine of collateral estoppel the defendant cannot contest again the essential issues of an intentional assault.

Both the criminal proceeding and this action grew out of an altercation between the parties occurring on July 23, 1971. During the affray the defendant struck the plaintiff, inflicting blows of such a nature that the plaintiff was hospitalized. The plaintiff then brought this action on July 31, 1971 and also filed the criminal complaint against the defendant, charging him with assault in the third degree.

At the trial of the criminal charge in the Justice Court, the plaintiff's attorney in this action acted as prosecutor. Besides the plaintiff, three other witnesses to the altercation testified at the trial, as well as the defendant. Counsel for the defendant cross-examined the plaintiff regarding the civil action, eliciting the claims made by the plaintiff in his complaint, including the demand for $225,000 as damages. In his summation to the jury in the criminal proceeding the defendant's counsel referred to the pending civil suit as a motive for the criminal charge.

The verdict of guilty found by the jury against the defendant, affirmed on appeal, was the ground upon which the Special Term rested its determination to grant summary judgment in favor of the plaintiff, citing Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105. The defendant on this appeal contends that inconsistencies between the plaintiff's testimony at the trial in the criminal proceeding and his bill of particulars and examination before trial in this action preclude the use of collateral estoppel, since the defendant is entitled to a full and fair hearing on the issue of his civil liability. Moreover, the defendant urges that the prosecution of the criminal charge by the plaintiff's attorney violated the tenets of due process.

As we see it, both of these contentions directly involve the conditions under which collateral estoppel arising out of a verdict in a criminal proceeding will be applied to the issues bound up in a civil action. At one time in New York the conviction in a criminal case was merely prima facie evidence of the facts in a civil action (Schindler v. Royal Insurance Co., 258 N.Y. 310, 179 N.E. 711; anno. 18 A.L.R.2d 1287, 1301). That rule was changed in Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105, Supra. There it was made clear that the conviction is conclusive proof of the same facts necessarily implicated in the civil litigation, provided that a full and fair opportunity had existed to contest the issues in the criminal proceeding (Id., 32 N.Y.2d 300, 304, 344 N.Y.S.2d 938, 941, 298 N.E.2d 105, 107). Again, in Vavolizza v. Krieger, 33 N.Y.2d 351, 356, 352 N.Y.S.2d 919, 923, 308 N.E.2d 439, 442, the two requirements for the use of collateral estoppel--the identity of the issues and the prior opportunity to meet the issues--were reaffirmed. 'Collateral estoppel means simply that, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit (Ashe v. Swenson, 397 U.S. 436, 443, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469; see People v. Cunningham, 62 Misc.2d 515, 519, 308 N.Y.S.2d 990, 994--995)' (Matter of McGrath v. Gold, 36 N.Y.2d 406, 411, 369 N.Y.S.2d 62, 65, 330 N.E.2d 35, 37).

It is true that in both Grand and Vavolizza the doctrine of collateral estoppel was applied to bar a litigant from pursuing a remedy rather than, as here, to aid a litigant in pursuing a remedy. We do not view this distinction as vital. The means to which the estoppel is put--whether as an offensive weapon or as a defensive shield--is not controlling, any more than the outworn requisite of mutuality now has decisive importance (cf. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195; see, generally, anno. 31 A.L.R.3d 1044, 1079). The reason underlying the use of estoppel is the need for the stability of judgments and the economy of judicial time, which emerge from the concept that, once fairly tried, an issue resolved should not be subject to retrial. Nevertheless, in every case the question of fairness-- an inherent element of due process--in the application of the doctrine must be the crowning consideration (cf. O'Connor v. O'Leary,247 Cal.App.2d 646, 56 Cal.Rptr. 1).

Fairness, for example, implies that the litigant in the prior proceedings had full opportunity to contest the decision now invoked against him (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). In testing the fairness of the earlier litigation, the presence of counsel in behalf of the losing party, the regularity of the procedures (cf. Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281, 316, 321), the adequacy of those procedures in the particular case and the limits of the jurisdiction in the first court are all significant and helpful guides. In fine, collateral estoppel should not be blindly applied to multiple litigation on the basis of a rigid rule; each case must be examined to determine whether, under all the circumstances, the party said to be estopped was not unfairly or...