ORDERED, that the motion (motion sequence number 001) of Plaintiff for summary judgment on the issue of liability is granted; and it is further

ORDERED, that the motion (motion sequence number 002) of Plaintiff for an Order of Attachment is denied with leave to renew as set forth herein; and it is further

ORDERED, that this matter is set down for a compliance conference on May 31, 2007 at 9:30 a.m. before the undersigned.

Plaintiff commenced this action by filing of a Summons and Verified Complaint on or about August 7, 2006 and issue was joined by Defendant's service of a Verified Answer on or about September 27, 2006. The complaint sets forth two causes of action against Defendant; the first cause of action alleges that Defendant "negligently and carelessly caused a flammable fluid [*2]to ignite and destroy and damage the building and the SAN REMO GENERAL STORE owned by the Plaintiff, JAMES VITA"; the second cause of action asserts that the Defendant "intentionally and criminally caused the flammable liquid to ignite, committing the crime of arson in violation of the statutes of the State of New York and caused the renovations, which were being done at that time by the Plaintiff to be destroyed." On the both causes of action Plaintiff seeks damages in the sum of $750,000. In the Verified Answer, Defendant essentially asserts general denials of the allegations and asserts the affirmative defenses that (1) any damages were caused by the culpable conduct of Plaintiff; and (2) that Plaintiff failed to mitigate his damages.

As a result of the incident complained of, Defendant was arrested and indicted for the crime of arson in the 3rd degree. The submissions reflect that on or about October 24, 2006, Defendant herein entered a plea of guilty to the crime of arson in the 4th degree, as a Class E felony under Penal Law §150.05. Defendant appeared in Court on that date and was allocuted ^[FN1] by Suffolk County Court Judge Andrew Crecca. In the allocution, Defendant testified that he was pleading guilty voluntarily, that noone forced him to enter a plea, he understood that pleading guilty was the same as if he had gone to trial, that he was waiving his rights to have the prosecution prove his guilt beyond a reasonable doubt, and that on August 11, 2005, he intentionally started a fire at the subject premises, which was being renovated by the Plaintiff at that time. Defendant specifically admitted that as a result of starting the fire that the fire recklessly damaged the property at the subject premises and that he did not have permission to start the fire.

Plaintiff now moves for summary judgment on the issue of liability and also seeks an Order of Attachment against defendant pursuant to CPLR §6201. By Order (COHALAN, J.), pending the determination of the motion herein, defendant was enjoined and restrained from the sale, assignment, transfer or interference with any property in his possession or custody, including real property located at 164 Beaver Drive, Kings Park, County of Suffolk, State of New York. Essentially, plaintiff argues that since defendant pled guilty to arson involving the same facts as this civil action, there is no issue of material fact and summary judgment should be granted. On the motion for an Order of Attachment, plaintiff alleges that he observed a "For Sale" sign on the property of Defendant's residence and that he is concerned that since he has yet to obtain a judgment against Defendant that if he is permitted to sell his house, Plaintiff will have no means by which to collect the judgment. Plaintiff also believes that Defendant attempted to remortgage his house which might also affect Plaintiff's ability to enforce or collect any judgment. Finally, Plaintiff alleges that Defendant's only other asset is a house in Florida which would be protected by that state's homestead exemption from attachment of a judgment. Thus, Plaintiff argues that an Order of Attachment is appropriate.

In opposition to the summary judgment motion, Defendant argues that summary judgment should be denied because discovery on the issue of damages has not been completed. [*3]Moreover, Defendant asserts that he entered into the plea agreement for fear of serving a minimum five (5) year prison sentence if convicted and further that any action by defendant was not the proximate cause of any damages. Regarding the motion for an Order of Attachment, defendant's counsel argues that Plaintiff has not satisfied the criteria under CPLR §6201(3) to obtain such order and again asserts that discovery on the issue of damages has not been completed.

In 1973, the Court of Appeals held that the doctrine of collateral estoppel applied to preclude a criminal defendant from relitigating issues in a civil action where (1) there was an identity of issue which has been necessarily decided in the prior action and is decisive of the present action; and (2) there was 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, 344 NYS2d 938, 298 NE2d 105 (1973). That is, where the criminal conviction arises out of the same events as alleged in the civil action, defendant is collaterally estopped from relitigating the issue of his liability in the civil action. Bazian v. Logatto, 299 AD2d 433, 749 NYS2d 537 (2d Dept. 2002); Wagman v. Kandekore, 243 AD2d 628, 663 NYS2d 227 (2d Dept. 1997). Moreover, it is irrelevant whether the conviction is by guilty plea or after trial, as long as the two conditions for the application of collateral estoppel are satisfied.Blaich v. Van Herwynen, 37 AD3d 387, 829 NYS2d 639 (2d Dept. 2007); Colby v. Crocitto, 207 AD2d 764, 616 NYS2d 399 (2d Dept. 1994). See also, Merchants Mutual Insurance Co., v. Arzillo, 98 AD2d 495, 472 NY.2d 97 (2d Dept. 1984).^[FN2]

In the instant action, Def endant's protestations to the contrary, it is clear that the criteria for the application of collateral estoppel have been satisfied. Defendant pled guilty to the crime of arson in the fourth degree under Penal Law §150.05. That section provides that "a person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion." Here, there is an identity of issues in the criminal and civil actions in that the Verified Complaint alleges that the damage to the Plaintiff's building were caused by Defendant's negligence, carelessness and recklessness. Thus, the first prong of the collateral estoppel test has been satisfied. Additionally, defendant's plea and allocution in the criminal action establishes that he was given the full and fair opportunity to litigate the criminal charges against him. Judge Crecca specifically inquired of Defendant whether he understood that his plea had the same effect as a conviction after trial and that he understood he was giving up his right to have the prosecution prove their case against him beyond a reasonable doubt. Therefore, the second prong [*4]of the collateral estoppel test has been satisfied.Merchant's Mutual, supra .

Based upon the foregoing, the doctrine of collateral estoppel precludes Defendant from relitigating the issue of liability in this action. Defendant having failed to raise any other issues of fact, the motion for summary judgment on the issue of liability is granted. The Court finds that Defendant's argument that summary judgment may not be granted because discovery has not been completed is without merit. The issue of discovery relates to damages only and not liability and therefore, discovery may proceed on the issue of damages. A discovery schedule will be established at the next court conference.

Plaintiff also seeks an order of attachment against Defendant's assets, including his residence at 164 Beaver Drive, Kings Park, County of Suffolk, State of New York. The basis for the application for an order of attachment is Plaintiff's claim that Defendant listed the residence for sale and also sought to remortgage the residence. Plaintiff argues that since he does not yet have a money judgment against Defendant, in the event he sells the residence or places a large mortgage on the property, it will seriously hamper Plaintiff's ability to enforce any money judgment obtained. Moreover, Plaintiff argues that the only other asset Defendant owns is real estate in Florida which is exempt from execution under a homestead protection. Thus, Plaintiff argues that absent an order of attachment, it will be impossible to collect any money judgment against Defendant.

In opposition to the motion, Defendant has submitted an affidavit and an affirmation of counsel only in which he alleges that Plaintiff has not satisfied the criteria for an order of attachment in that he has not established an intent to defraud creditors. Defendant states that although he has attempted to sell his home, he has not done so for the purpose of avoiding any potential judgment. He states that he does not intend to leave the state of New York as his children and mother reside here.

CPLR §6201(3) provides in relevant part that an order of attachment may be granted in any action may be granted in any action where the defendant "with intent to defraud his creditors or frustrate enforcement of a judgment that might be rendered in Plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts." It is well settled that to obtain an order of attachment under this provision, the Plaintiff must demonstrate that the Defendant "has or is about to conceal his or her property in one or more of several enumerated ways, and has acted or will act with the intent to defraud his or her creditors, or to frustrate the enforcement of a judgment in favor of the Plaintiff." Mineola Ford Sales Ltd., v. Rapp, 242 AD2d 371, 661 NYS2d 281 (2d Dept. 1997). Moreover, the " mere removal, assignment or other disposition of property is not grounds for attachment.'" Corsi v. Vroman,37 AD3d 397, 829 NYS2d 234 (2d Dept. 2007), quoting, Computer Strategies v. Commodore Bus. Machs., 105 AD2d 167, 483 NYS2d 716.

Here, the allegations regarding Defendant's potential sale and/or refinancing of his residence do not rise to the level of demonstrating an intent to defraud or frustrate enforcement of a judgment. Therefore, the motion for an order of attachment is denied with leave to renew in the event Plaintiff can demonstrate actions undertaken by Defendant designed to defraud Plaintiff and/or frustrate [*5]enforcement of any money judgment. The temporary restraining order contained within the Order to Show Cause dated December 20, 2006 is hereby vacated and of no further force and effect.

The motion for summary judgment on the issue of liability is granted and defendant is collaterally estopped from relitigating the issue of liability in this action. The motion for an order of attachment is denied with leave to renew as set forth herein above. The temporary restraining order is vacated.

Counsel are directed to appear for a compliance conference on May 31, 2007 at 9:30 a.m. before the undersigned.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 11, 2007

Riverhead, New York

Emily Pines

J. S. C.