Petrella v Lieberman
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Petrella v Lieberman 2012 NY Slip Op 32057(U) July 25, 2012 Supreme Court, Nassau County Docket Number: 7041/11 Judge: Thomas Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Bon. Thomas Feinman Justice TRIAL/IAS PART 9 NASSAU COUNTY LOUIS PETRELLA Plaintiff INDEX NO. 7041/11 MOTION SUBMISSION DATE: 6/25/12 - against JONATHAN LIEBERMAN MOTION SEQUENCE NO. Defendat. The following papers read on this motion: Notice of Motion and Afdavits..................... Affirmation in Opposition............................... Reply Afrmation........................................... RELIEF REQUESTED The plaitiff moves for an order pursuant to CPLR 3212 granting plaitiff summar judgment. The defendat submits opposition. The plaintiff submits a reply afrmation. BACKGROUND The plaintiff initiated this action to recover for injures sustaned June 3 , 2010 at approximately 1 :00 p.m., on Sunse Highway, at or near the Long Island Ralroad Station , (LIRR), Merrick, New York. The plaintiffs Verified Complaint alleges , as per the first cause of action, that the defendant carelessly, recklessly and negligently came into bodily physical contat with the plaintiff. As per the second cause of action, plaintiff alleges that the defendant intentionally came into violent bodily physical contact with the plaintiff, whereby plaintiffwas caused to sustain injures caused by the defendant's wanton and reckless acts. The plaitiffs Verified Bil of Parculars provides that the defendat carelessly, recklessly and negligently strck plaintiffs nose and jaw with his fists , twisted plaitiffs fingers and kicked plaintiffs knees. Plaintiffs injuries include a fractured jaw in two locations , whereby plaintiff underwent open reduction and internal fixation , a fractured nose and a frctured finger. The defendat interposed a Verified Answer asserting the defenses of culpable conduct in the altercation , justification of defendant' s actions , and plaintiffs volunta paricipation assumption of risk. [* 2] , the plaintiff and Following an automobile accident between the pares ' respective vehicles charged with defendant exited their vehicles and began arguing. The defendant was arested and injur to another person, causing 120. , Assault 3 with the intent to cause physical Penal Law injur to such person. The defendant and plaintiff were allegedly involved in a road rage incident , with a that ended up in the parking lot of the LIRR Merrck Train Station, whereby the defendant closed fist, strck plaintiffs face, breaking plaintiffs jaw in two places , and allegedly broke plaitiff s left ring figer. , the The defendat submits that afer the motor vehicle accident, both vehicles pulled over defendant asked the platiff if he was okay, and defendant told the plaintiff they should leave since , and there was no daage, and the defendant had a meetig. The plaintiff stated they could not leave that defendat stated he wa leaving because he had to get to a meeting. The defendat provides plaintiff told the defendat that the defendat was not leaving, pulled his sunglasses down, came forward and said to the defendat You don t know who you re F' ing with" , then pushed defendant . The defendat with both hands and said "Don t F with me. You re messing with the wrong person , plaintiff then swug and hit the plaintiff in the face, and the altercation began. As per the defendant hads and theatened him. strck the first blow" when the plaintiff pushed him with both The defendat plea gulty to a violation of 240. 20(7) ofthe Penal Law which provides as follows. A person is guilty of disorderly conduct when , with the intent to cause public inconvenience, anoyance or alar, or recklessly creating a risk thereof: ... 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purose. At the defendat' s allocation , the Cour stated specifically as to the June 3, 201 0 incident, On that date , time and at that location , how do you plead , guilty or not guilty, to violating the Penal Law , specifically Section 240. 20(7), disorderly conduct, a violation not a crime?" The defendant the responded guilty. The Cour accepted the plea, which was offered on the condition that defendant complete a twelve-week , anger management program, as well as 21 hours of community service , and a sty away Order of Protection. APPLICABLE LAW Where a par has had a ful and fair opportity to litigate an issue, that par is collaterally v. JL Astoria Sound, Inc. (Montoya estopped from litigating the sae issue in another proceeding. 92 AD3d 736). " In order for collateral estoppel to apply, two elements must be estblished: (1) that the identical issue wa necessarly decided in the prior action and is decisive in the present action and (2) tht the precluded par ' must have had a full and fair opportty to contest the prior New York Cent. Mut. Fire Ins. Co. 76 NY2d 659). Issue preclusion is only applicable if there is an identity of issue which was necessarily decided in the prior action , and decisive in the present action , where there was a full and fair opportnity to contest 24 NY2d 65). v. Public Adm ' r, (Schwartz the purorted controllng decision. determination. ", (Id., citing D Arta v. [* 3] Generally, whether a par has had a full and fair opportty to contest a prior decision whether requies consideration of the realities of the litigation ' ... (and) the fudamental inquiry is policy relitigation should be permitted in a paricular case in light of what are often competing considerations , includig fairness to the pares, conservation of resources of the court and the possible, litigants, and the societ interests in consistent and accurate results. No rigid rues are the because even those factors may vary in relative importce depending on the natue of v. Staats burg Fire Staats burg Water Co. 2007 WL 2174774, citig v. Burke, proceedings. (Marx v. Barbieri 53 NY2d 285). Gilberg 72 NY2d 147, quoting Dist., A conviction in a City Cour for the pett offense of hasment does not collaterally estop, and canot later be use to preclude the defendant from disputing the merits of a civil suit for assault involving the sae incident ... (as) he was not afforded the same opportity to litigate his v. Barbieri, supra). liabilty in the City Cour as he would in the Supreme Cour. (Gilberg the Cour of Appeals provided that harassment is pett offense , and the City Cour noted Gilberg, Pett infractions , like tht the defendant was "not found guilty of a crime, (as) it' s a violation trafc violations, are more accurately described as noncriminal offenses. (Id. The Cour reasoned tht grting collateral estoppel would not reduce litigation in the long ru, but rather would "provide an incentive to potential plaintiffs to fie a minor cdminal charge before commencing a civil action" ... whereby " (i)fthe defendant is convicted the prosecution wil have also won the plaintiff s civil action , without the expense of a civil trial action and , more importt, without the plaintiff having to convince a jur of the merits of his action (Id. DISCUSSION The plaintiff moves for summar judgment on the issue of liabilty based on the doctrine of collateral estoppel. The plaintiff s contention tht defendat' s gulty plea to violating ~240. 20(7) of the Penal Law, disorderly conduct, precludes the defendat from contesting the action herein is unavailing. Here , clearly, the defendant did not plead guilty to a crime , but a violation. Moreover, here , the defendat was not aforded the same opportty to litigate his liabilty in the District Cour as he would in the Supreme Cour. The defendat was not aforded the opportty to fully , and contest a civil action fOT liabilty and assert his defenses of provocation, culpable conduct Gilberg, supra the defendant' s " conviction for the pett offense of justification for his acts. In harassment does not collaterally estop and canot later be used to preclude the defendant from disputing the merits of a civil suit for assault involving the same incident and seeking $250 000. in dages ... and accordingly it is not unfair to permit him (an) opportty to defend the civil complait on the merts in a maner consistent with the potential magtude of the suit" On a sumar judgment motion, evidence must be viewed in the light most favorable to the 269 AD2d 495). The nonnon-moving par is entitled to every moving par' s evidence must be accepted as 2 AD3d v. Tang, (Wong favorable inference which can be reaonably drawn from the evidence. v. Board of Education of the City of New York 227 AD2d 440). 840; Farruck non-moving par. (Gonzalez v. Metropolitan Life Insurance Company, tre and the fuction on this motion for sumar judgment is issue fiding Tather than issue 165 NYS2d 498). Since sumar Twentieth Century Fox Film Corp., (Sullvan v. determination. judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence v. Ceppos 413 NYS2d 141). Thus , when the existence of (Rotuba Extruders of a trable issue. (Stone an issue of fact is even arguble or debatable , sumar judgment should be denied. The cour' s [* 4] 200 NYS2d 627. The role of the cour is to determine ifbonafde issues of fact exists v. Chittenden, Black Corp. , 203 AD2d 239; (Gaither v. Saga and not to resolve issues of credibilty. 69 NY2d 665). In reviewing a motion for sumar judgment, the cour evaluates the evidence in v. Twentieth Century Fox Film (Sullvan the most favorable light to the par opposing the motion. Corp. , supra). Goodson, Here , the defendat's plea to a violation of disorderly conduct does not estop the defendat from denying liability. Additionaly, trable issues of fact exist as to the justification of the plaintiffs and the defendat' s acts, purorted provocation, and the extent of culpable conduct, if any. In light of the foregoing, the defendant' s motion for summar judgment is denied. Dated: July 25 2012 cc: Law Office of An Ball , P. Mulholland Minion Duff Davey McNiff & Beyrer ENTERED JUL 24 2012 NASSAU COUNTY S OFFICE COUNTY CLERK' -4-
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