Hudson v New York City Tr. Auth.

[*1] Hudson v New York City Tr. Auth. 2009 NY Slip Op 51231(U) [24 Misc 3d 1202(A)] Decided on June 15, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2009
Supreme Court, Kings County

Sandra Hudson, Plaintiff,

against

New York City Transit Authority, DAVID M DURNEY, LORNA R. SMITH-BOND and ALANZO C. JEFFERS, Defendant(s)



38883/07



The Plaintiff is represented by the Law Office of Pops & Associates by Gary Caliendo, Esq., of counsel,

the defendants the New York City Transit Authority and David Durney are represented by Wallace D. Gossett, Esq.,

the defendant Lorna R. Smith-Bond is represented by the Law Firm of James G. Bilello & Associates by Umberto O. Correia, Esq., of counsel.

Robert J. Miller, J.

In this action, plaintiff Sandra Hudson (Hudson), a passenger on a New York City Transit Authority (NYCTA) bus operated by defendant David Durney (Durney) which was involved in a collision with a vehicle owned by defendant Lorna Smith-Bond (Smith-Bond) and operated by defendant Alanzo C. Jeffers (Jeffers), seeks to recover for injuries sustained in the accident. Smith-Bond alleges that Jeffers was operating the vehicle without her permission.

In the related uninsured motorist action involving this accident, Justice David I. Schmidt heard a petition to stay arbitration. This petition resulted in a order dated May 13, 2008 which stated in relevant part, "arbitration temporarily stayed pending framed issue hearing on the issue of permissive use of the Smith-Bond vehicle; matter referred to JHO to hear and determine..."On May 13, 2008, a hearing was held before Judicial Hearing Officer Miriam Sunshine. At the hearing, JHO Sunshine stated that the issue to be determined was " the issue of permissive use of the Smith-Bond vehicle" Attorneys for Hudson, Smith- Bond and the NYCTA participated in the hearing. All parties were given an opportunity to call and cross- examine witnesses. [*2]

On August 13, 2008, JHO Sunshine ruled that the Smith-Bond vehicle was being operated without her permission, at the time of the accident. Specifically the JHO found that "no permission, express or implied, was given to Alonzo Jefferes to drive the vehicle at the time of the accident". JHO Sunshine's order was served with notice of entry on August 14, 2008. It has not been appealed.

Smith-Bond now moves to dismiss the complaint and all cross claims pursuant to CPLR § 3211 on the grounds of collateral estoppel in light of the JHO's determination. Plaintiff opposes

the motion arguing that a JHO determination "should not serve as the basis of an argument of Res Judicata". Defendants NYCTA and Durney take no position. Defendant Jeffers did not appear in opposition.

The issue to be determined is whether the order of the JHO has collateral estoppel effect so as to result in the dismissal of the complaint as against the owner of the vehicle, Smith-Bond. The doctrine of collateral estoppel precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. (Ryan v New York Tel. Co., 62 NY2d 494 [1984,] Ripley v Storer, 309 NY 506, [1955].)New York courts have required that two conditions be met before collateral estoppel will apply to any prior determination. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from re-litigating the issue must have had a full and fair opportunity to contest the prior determination. (Clemens v Apple, 65 NY2d 746 [1985], Ryan v New York Tel. Co., 62 NY2d 494 [1984], DeWitt, Inc. v Hall, 19 NY2d 141[1967], Schwartz v Public Adm'r, 24 NY2d 65 [1969].) "In the application of collateral estoppel with respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding." (Ryan v New York Tel. Co., 62 NY2d 494 [1984]).

Here, Smith-Bond argues that "the owner of a stolen vehicle is not liable as a matter of law for the negligence of a thief". In Epstein v Mediterranean Motors, 109 AD2d 340, [2nd Dept. 1985], the defendant car owner was granted summary judgment when the vehicle stolen from his garage was involved in an accident seriously injuring two victims. The court in Epstein reasoned that the owner of a vehicle which is stolen is victimized by the thief when the thief steals his property and the owner would be doubly victimized if he were to be made the

unwilling insurer of, and joint-tort-feasor with, the thief who stole his vehicle. Therefore, in order to be able to recover damages in this personal injury action against defendant owner Smith-Bond, plaintiff has to establish that she had given permission to Jeffers to use her car during the time of the accident. That was the precise issue decided by the JHO [*3]when she denied plaintiff a permanent stay of arbitration of the uninsured motorist claim. The JHO found that the Smith-Bond had not given permission, express or implied, to Jeffers to drive the vehicle at the time of the accident. Thus, as the proponent of the collateral estoppel doctrine, defendant Smith-Bond has met her burden.

Secondly, the plaintiff, as the opponent to the applicability of the rule, has failed to meet its burden of establishing the absence of a full and fair opportunity to litigate the issue of the prior proceeding. "A determination whether the first action or proceeding genuinely provided a

full and fair opportunity requires consideration of the realities of the prior litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." (Ryan v New York Tel. Co., 62 NY2d 494 [1984]). "Among the factors to be considered in determining whether a party has had her day in court are: the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence of and expertise of counsel, the availability of the new evidence, the differences in the applicable law and the foreseeability of future litigation."( Ryan v New York Tel. Co., 62 NY2d 494 [1984]). In the current case, the JHO's decision was reached after a hearing where both plaintiff Hudson and defendant Smith-Bond, as well as the other defendants, had an opportunity to present evidence, call and cross-examine witnesses. Moreover, plaintiff did not appeal the August 13, 2008 order of the JHO, and the time to appeal has lapsed.

Accordingly, defendant Lorna R. Smith-Bond's motion to dismiss the complaint and all cross-claims asserted against her is granted .

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 15, 2009