Brooks v Rivera
2013 NY Slip Op 51191(U) [40 Misc 3d 133(A)]
Decided on July 19, 2013
Appellate Term, First Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2013

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ

Lamour Brooks and Tyrah Brooks, Plaintiffs-Respondents, - -


Michael Rivera, Defendant-Appellant, -and- Motor Vehicle Accident Indemnification Corporation, Nonparty-Appellant.

Nonparty Motor Vehicle Accident Indemnification Corporation (MVAIC), as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 28, 2011, which, after a framed-issue hearing, determined that plaintiffs were not the victims of an intentional tort and, in effect, directed nonparty Motor Vehicle Accident Indemnification Corporation (MVAIC) to appear on behalf of and defend defendant in the action.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 28, 2011, reversed, with $10 costs payable by plaintiffs, and motion denied.

Plaintiffs were injured on October 3, 2011 when, while standing on a public sidewalk, they were struck and injured by an uninsured automobile driven by defendant. In a subsequent criminal prosecution arising from the occurrence, defendant pled guilty to intentional felony assault with respect to plaintiff Tyrah Brooks (Tyrah) and reckless felony assault with respect to plaintiff Lamour Brooks (Lamour).

"A criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue," where, as here, there is "an identity of issues in the criminal and subsequent civil actions and ... the defendant ... had a full and fair opportunity to contest the issues raised in the criminal proceedings" (Grayes v DiStasio, 166 AD2d 261, 262-263 [1990]). Thus, for purposes of determining nonparty MVAIC's liability, defendant's conviction of intentional assault as to Tyrah "precludes a finding here that the act was the result of an accident rather than intent" (see Valle v Blackwell, 173 AD2d 390, 390 [1991]). Nor does defendant's conviction for the reckless assault of Lamour dictate a contrary result, where the evidence at the framed-issue hearing established [*2]that Lamour's injuries were inherent in defendant's act of driving his car onto a sidewalk intending to injure Tyrah (see Progressive N. Ins. Co. v Rafferty, 17 AD3d 888, 889 [2005]).

Although plaintiffs' motion for relief against MVAIC was not brought in the proper form, we have treated the motion as one seeking declaratory relief against MVAIC (see CPLR 103[c]), which Civil Court has jurisdiction to render in the circumstances here present (see CCA 212-a). We deny the motion on the merits, however, since MVAIC'S liability would only attach if the injury-producing conduct was the result of an accident rather than an intentional act (see McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d 35 [1962], affd 12 NY2d 922 [1963]; Valle v Blackwell, 173 AD2d at 390).

Decision Date: July 19, 2013