Gilberg v. Barbieri

74 A.D.2d 913, 426 N.Y.S.2d 72, 1980 N.Y. App. Div. LEXIS 10719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1980
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., arising out of an assault, defendant appeals from an order of the Supreme Court, Westchester County, dated July 13, 1979, which granted plaintiffs motion for summary judgment on the issue of liability. Order affirmed, with $50 costs and disbursements. Plaintiffs motion for summary judgment is based upon the doctrine of collateral estoppel. It is well established that to invoke collateral estoppel, " 'There must be [1] an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and [2] a full and fair opportunity to contest the decision now said to be controlling’ ” (S. T. Grand, Inc. v City of New York, 32 NY2d 300, 304; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 71; Read v Sacco, 49 AD2d 471, 473). In the instant case, the record establishes that the facts upon which the defendant’s conviction for the violation of harassment rested are the identical facts which must be proved for plaintiff to recover damages for personal injuries sustained by an intentional assault. In addition, defendant was afforded a full and fair opportunity to contest the accusation of harassment at his trial. Under these circumstances, the conviction of harassment is conclusive proof of the defendant’s liability in the subsequent action to recover damages for intentional assault (see S. T. Grand, Inc. v City of New York, supra). Accordingly, his liability is established as a matter of law. Hopkins, J. P., Titone and Lazer, JJ., concur.