Vita v. Spina, 2007 NY Slip Op 30875(U) (N.Y. Sup. Ct. 4/11/2007)

• Decision Date: 11 April 2007
• Docket Number: 0020591/2006,Motion Sequence 001 MG No's.: 002 MD
• Citation: Vita v. Spina, 2007 NY Slip Op 30875(U) (N.Y. Sup. Ct. 4/11/2007), 2007 NY Slip Op 30875, 0020591/2006, Motion Sequence 001 MG No's.: 002 MD (N.Y. Sup. Ct. Apr 11, 2007)
• Parties: JAMES VITA, Plaintiff, v. JAMES SPINA, Defendant
• Court: New York Supreme Court

Page 1

2007 NY Slip Op 30875(U)

JAMES VITA, Plaintiff, v. JAMES SPINA, Defendant

0020591/2006

Motion Sequence 001 MG No's.: 002 MD

Supreme Court of the State of New York, Suffolk County.

April 11, 2007

Original Motion Dates: January 16, 2007.

Motion Submit Date: February 15, 2007.

Joel P. Stolowitz, Esq., Hauppauge, New York, Attorney of Plaintiff.

Peter S. Gordon, Esq., Gordon & Gordon, PC, Forrest Hills, New York, Attorney of Defendant.

EMILY PINES Judge.

ORDERED, that the motion (motion sequence number 001) of Plaintiff for summary judgment on the issue of liability is granted; and it is further

ORDERED, that the motion (motion sequence number 002) of Plaintiff for an Order of Attachment is denied with leave to renew as set forth herein; and it is further

ORDERED, that this matter is set down for a compliance conference on May 31,2007 at 9:30 a.m. before the undersigned.

Plaintiff commenced this action by filing of a Summons and Verified Complaint on or about August 7,2006 and issue was joined by Defendant's service of a Verified Answer on or about September 27, 2006. The complaint sets forth two causes of action against Defendant; the first cause of action alleges List Defendant "negligently and carelessly caused a flammable fluid to ignite and destroy and damage I he building and the SAN REM0 GENERAL STORE owned by the Plaintiff, JAMES VITA"; the second cause of action asserts that the Defendant "intentionally and criminally caused the flammable liquid to ignite, committing the crime of arson in violation of the statutes of the State of New York and caused the renovations, which were being done at that time by the Plaintiff to be destroyed." On the both causes o F action Plaintiff seeks damages in the sum of $750,000. In the Verified Answer, Defendant essentially asserts general denials of the allegations and asserts the affirmative defenses that (1) any damages were caused by the culpable conduct of Plaintiffi and (2) that Plaintiff failed to mitigate his damages.

As a result of the incident complained of, Defendant was arrested and indicted for the crime of xson in the 3^rd degree. The submissions reflect that on or about October 24, 2006, Defendant herein entered a plea of guilty to the crime of arson in the 4^th degree, as a Class E felony under Penal Law § 150.05. Defendant appeared in Court on that date and was allocuted¹ by Suffolk County Court Judge Andrew Crecca. In the allocution, Defendant testified that he was pleading guilty voluntarily, that noone Forced him to enter a plea, he understood that pleading guilty was the same as if he had gone to trial, that lie was waiving his rights to have the prosecution prove his guilt beyond a reasonable doubt, and that on August 11, 2005, he intentionally started a fire at the subject premises, which was being renovated by the Plaintiff at that time. Defendant specifically admitted that as a result of starting the fire that the fire recklessly damaged the property at the subject premises and that he did not have permission to start the fire.

Plaintiff` now moves for summary judgment on the issue of liability and also seeks an Order of Attachment against defendant pursuant to CPLR $6201. By Order (COHALAN, J.), pending the determination of the motion herein, defendant was enjoined and restrained from the sale, assignment, transfer or interference with any property in his possession or custody, including real property located at 164 Beaver Drive, Kings Park, County of Suffolk, State of New York. Essentially, plaintiff argues that since defendant pled guilty to arson involving the same facts as this civil action, there is no issue of material fact and summary judgment should be granted. On the motion for an Order of Attachment, plaintiff alleges that he observed a "For Sale" sign on the property of Defendant's residence and that he is concerned that since he has yet to obtain a judgment against Defendant that if he is permitted to sell his house, Plaintiff will have no means by which to collect the judgment. Plaintiff also believes that Defendant attempted to remortgage his house which might also affect Plaintiffs ability to enforce or collect any judgment. Finally, Plaintiff alleges that Defendant's only other asset is a house in Florida which would be protected by that state's homestead exemption from attachment of a judgment. Thus, Plaintiff argues that an Order of Attachment is appropriate.

In opposition to the summary judgment motion, Defendant argues that summary judgment should be denied because discovery on the issue of damages has not been completed. Moreover, Defendant asserts that he entered into the plea agreement for fear of serving a minimum five (5) year prison sentence if convicted and further that any action by defendant was not the proximate cause of any damages. Regarding the motion for an Order of Attachment, defendant's counsel argues that Plaintiff has not satisfied the criteria under CPLR §6201(3) to obtain such order and again asserts that discovery on the issue of damages has not been completed.

SUMMARY JUDGMENT ON LIABILITY

In 1973, the Court of Appeals held that the doctrine of collateral estoppel applied to preclude a criminal defendant from relitigating issues in a civil action where (1) there was an identity of issue which has been necessarily decided in the prior action and is decisive of the present action; and (2) there was 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, 344 N.Y.S.2d 938, 298 N.E.2d 105 (1973). That is, where the criminal conviction arises out of the same events as alleged in the civil action, defendant is collaterally estopped from relitigating the issue of his liability in the civil action. Bazian v. Logatto, 299 A.D.2d 433, 749 N.Y.S.2d 537 (2d Dept. 2002); Wagman v. Kandekore, 243 A.D.2d 628, 663 N.Y.S.2d 227 (2d Dept. 1997). Moreover, it is irrelevant whether the conviction is by guilty plea or after trial, as long as the two conditions for the application of collateral estoppel are satisfied. Blaich v. Van Herwynen, 37 A.D.3d 387, 829 N.Y.S.2d 639 (2d Dept. 2007); Colby v. Crocitto, 207 A.D.2d 764, 61 6 N.Y.S.2d 399 (2d Dept. 1994). See also, Merchants Mutual Insurance Co., v. Arzillo, 98 A.D.2d 495, 472 N.Y..2d 97 (2d Dept. 1984).²

In the instant action, Defendant's protestations to the contrary, it is clear that the criteria for the application of collateral estoppel have been satisfied. Defendant pled guilty to the crime of arson in the fourth degree under Penal Law $150.05. That section provides that "a person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or ;ausing an explosion." Here, there is an identity of issues in the criminal and civil actions in that the Verified Complaint alleges that the damage to the Plaintiffs building were caused by Defendant's negligence, carelessness and recklessness. Thus, the first prong of the collateral estoppel test has been satisfied. Additiona...