Upon the foregoing papers, plaintiff moves, inter alia, for partial summary judgment on the issue of liability as against defendants John Licata ("Licata") and "DCFS" Trust ("DCFS").

This is an action to recover damages for personal injuries sustained by plaintiff-pedestrian on November 16, 2003, when he was struck by an automobile indisputably driven by defendant John Licata and owned by defendant DCFS. It is alleged that plaintiff suffered multiple fractures and

intraparenchymal bleeding into the right side of his brain. It is further alleged that plaintiff was hospitalized from November 16, 2003 through December 2, 2003; was required to undergo multiple

surgeries; and is confined to bed and home. It is also claimed that plaintiff remains totally incapacitated from working or attending school.

On December 1, 2003, Licata pled guilty to assault in the second degree (Penal Law §120.05 [4]) and operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]) in connection with the above incident. His blood alcohol level when taken at the hospital was .22.

At sentencing on July 1, 2004, Licata accepted responsibility for his actions, expressed remorse; and admitted that he had made a mistake (see Plaintiff's Exhibit "C" p. 14). He was sentenced to a six-month period of incarceration concurrent with five years probation (id. at 22-23).

On the day following the guilty plea, i.e., December 2, 2003, plaintiff commenced this action against Licata and two other individuals, Richard Defresco and Nicole Conover. The complaint as against Defresco and Conover has since been dismissed. An action against the remaining defendants was commenced on or about June 29, 2004. The actions were consolidated under Index Number 13549/03 on January 6, 2005 ^[FN1].

In support of his motion for summary judgment, plaintiff asserts that Licata is collaterally estopped by his plea of guilty to driving while intoxicated to contest liability in this civil action (see S.T. Grand, Inc. v. City of New York ,32 NY2d 300; see also Vehicle and Traffic Law §1192).

Plaintiff further asserts that DCFS, as the titleholder of the leased vehicle, is an "owner" within the meaning of Vehicle and Traffic Law §388 (1) and, therefore, vicariously liable for any injuries resulting from its permissive use (see Litvak v. Fabi, 8 AD3d 631). DCFS has acknowledged that it entered into a lease agreement with Licata for the vehicle in question on or about January 18, 2003 (see Plaintiffs Exhibit "B", Amended Verified Answer, para. 35).

In opposition to the motion, Licata argues that a triable issue of fact exists since Nicole Conover, a former co-defendant, testified at her deposition that plaintiff was in the street throwing a football when the accident occurred (see Plaintiff's Exhibit "G", pp. 12, 24, 25). In this regard, Licata relies on Vehicle and Traffic Law §1156(a) to raise an issue of fact regarding plaintiff's own negligence in causing the accident (Licata Affirmation in Opposition, para 5). The cited section provides that "[w]here sidewalks are provided and they may be used with safety it shall be unlawful for a pedestrian to walk along and upon the roadway". On this basis, it is argued that summary judgment must be denied. [*2]

The doctrine of collateral estoppel precludes a party from relitigating an issue already decided against it in prior litigation (see Kaufman v. Lilly & Co., 65 NY2d 449, 455; Gilberg v. Barbieri, 53 NY2d 285, 291). For the doctrine to apply, the issue raised in both proceedings must be identical; must have been necessary to the decision in the prior action; and must be decisive in the pending action. Where these factors are satisfied, a party who was afforded a full and fair opportunity to litigate the issue now said to be controlling is precluded from contesting same in a subsequent proceeding (Kaufman v. Lilly & Co., 65 NY2d at 455). Thus, where a criminal conviction is based upon facts identical to those at issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the facts established thereby (see D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; (McDonald v. McDonald, 193 AD2d 590; Merchants Mut. Ins. Co. v. Arzillo, 98 AD2d 495, 502-503). In this context, it has been held that a guilty plea is the legal equivalent of a conviction after trial and, therefore, is entitled to conclusive effect as to all of the factual elements necessary to sustain the conviction (see S.T. Grand, Inc. v. City of New York, 32 NY2d at 304-305, Merchants Mut. Ins. Co. v. Arzillo, 98 AD2d at 503-506; see also McMillan v. Williams, 116 Misc 2d 171, 172 [S Ct New York Co. 1982]).

Here, the papers presently before the Court constitute persuasive evidence that defendant Licata, who was represented by counsel throughout, had a full and fair opportunity to litigate his guilt or innocence in his criminal case, and that he freely acknowledged his role in causing the accident. For his part, defendant Licata does not seriously dispute that the factual issues raised in both proceedings are the same, but claims that plaintiff's alleged violation of Vehicle and Traffic Law §1156(a) raises a triable issue of comparative negligence. The Court disagrees.

Assuming arguendo that the statute in question is applicable within the geographical limits of the City of New York ( but see 1 NY PJI 2:76 at p 421)), Conovers' testimony to the effect that plaintiff was in the street throwing a football does not, even if true, raise a triable issue of fact warranting denial of this motion. In this regard, the Court must note that there is no evidence of any causal connection between the underlying accident and plaintiff's alleged conduct, which "furnished [,at worst,] the occasion for the accident, but was not [its] cause" (Loder v. Greco, 5 AD3d 978, 979; see Ely v. Pierce, 302 AD2d 489, lv denied 100 NY2d 505; cf. Heffernan v. Logue, 40 AD2d 1071). Where a party merely furnishes the occasion for the happening of an accident rather than causing it, liability cannot be imposed against him or her (see Katz v. Klagsbrun, 299 AD2d 317). Accordingly, plaintiff is entitled to partial summary judgment on the issue of liability as against defendant Licata.

Likewise, plaintiff is entitled to summary judgment against defendant DCFS. As a matter of law, DCFS, as the titleholder of the offending vehicle, was an "owner" within the meaning of Vehicle and Traffic Law §388. Accordingly, it is subject to vicarious liability for any and all injuries resulting from the permissive use thereof (see Chung v. Pinto, 26 AD3d 428; Litvak v. Fabi, 8 AD3d at 632). Here, plaintiff has already established through admissible evidence that the driver of the offending vehicle (defendant Licata) is estopped from denying that his actions on the night of the [*3]

accident were the sole proximate cause thereof. In opposition, the statutory owner, DCFS, has failed to raise an issue of fact regarding, e.g., Licata's permissive use of the vehicle (see Gomez v. Sammy's Transp., 19 AD3d 544).

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment on the issue of liability as against defendants John Licata and DCFRS Trust is granted; and it is further

ORDERED that the affirmative defenses pleaded by the foregoing defendants, with the sole exception of the so-called "affirmative defenses" pleaded under CPLR 4545(c), are severed and dismissed; and it is further

ORDERED that the matter be set down for trial on the issue of damages upon the filing of the necessary papers and the payment of any required fees; and it is further

ORDERED that the Clerk enter judgment accordingly.

DATED: JAN. 2, 2007ENTER:

/s/____________________________________

THOMAS P. ALIOTTA, J.S.C.

ASN by EVE/pt on 1/3/07