[*1]

Parkes v Ahmad
2009 NY Slip Op 50872(U) [23 Misc 3d 1120(A)]
Decided on May 6, 2009
Supreme Court, Kings County
Miller, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2009
Supreme Court, Kings County


Michael C. Parkes, Plaintiff,

against

Mohammed A. Ahmad, Cajamarca Limo Services, Norman Epstein and New York City Transit Authority, Defendant. (s) New York City Transit Authority, Third-Party Plaintiff, Odetta P. Morrision Third-Party Third-Party Defendant. Jorge Chiquillo, as Proposed Administrator of the Estate of Lilia Chiquillo, and Jorge Chiquillo Individually, Plaintiff, Mohammed A. Ahmad, Cajamarca Limo Service, Michael Parkes, Odetta Morrision Norman Epstein and New York City Transit Authority Defendants.



Jorge Chiquillo, as Proposed Administrator of the Estate of Lilia Chiquillo, and Jorge Chiquillo Individually, Plaintiff,

against

Mohammed A. Ahmad, Cajamarca Limo Service, Michael Parkes, Odetta Morrision Norman Epstein and New York City Transit Authority Defendants.




2925/06



In Action #1, the plaintiff Michael A. Parkes is represented by the law firm of Lozner & Mastropietro by Dean G. Delianties, Esq., of counsel, the defendants Mohammed A. Ahmad and Cajamarca Limo Services are represented by the law firm of Russo , Keane & Toner, LLP. by Brenda R. Hall, Esq., of counsel, the defendant- third-party plaintiff the New York City Transit Authority and the defendant Norman Epstein are represented by the law office of Wallace D. Gossett, Esq. by Antonio Seda, Esq., of counsel, the third- party- defendant Odetta P. Morrision is represented by the law firm of Montfort, Healy, McGuire & Salley, LLP by Rawle R. Briggs, Esq. of counsel. In Action #2, the plaintiff is represented by the law firm of Montes, Guadagnino & Associates by Peter Guadagnino, Esq. of counsel, the defendants Mohammad A. Ahmad and Cajamarca Limo Service are represented by the law firm of Russo, Keane & Toner, LLP. by Brenda R. Hall Esq., of counsel, the defendant Michael Parkes is represented by the law firm of Connors & Connors, P.C. by Robert J. Pfuhler, Esq., of counsel, the defendant Odetta P. Morrision is represented by the law firm of Montfort, Healy, McGuire & Salley, LLP by Rawle R. Briggs, Esq., of counsel, and the defendants the New York City Transit Authority and Norman Epstein are represented by the law office of Wallace D. Gossett, Esq. by Antonio Seda, Esq., of counsel.

Robert J. Miller, J.



This case involves the tragic death of a pedestrian Lilia Chiquillo who was killed as result of a multiple car collision of vehicles driven by Mohamad A. Ahmad (Ahmad) in a car owned by Cajamarca Limo Service (Cajamarca), a car driven by Michael Parkes (Parkes) and owned by Odetta Morrison (Morrision) as well as a New York City Transit Authority (NYCTA) bus driven by Norman Epstein (Epstein). On January 30, 2006, Parkes filed suit in Action #1 against the defendants Ahmad, Cajamarca, Epstein and the NYCTA. The NYCTA instituted a Third- Party Action against Morrision.

On November 28, 2006, the Estate of Lilia Chiquillo filed suit in Action #2 against the defendants Ahmad, Cajamarca, Parkes, Morrision, Epstein and NYCTA .

Both cases have been consolidated for a joint trial.

There are multiple motions for summary judgment pending before the Court. In Action #1, plaintiff Parkes moves for summary judgment against the defendants Ahmad and Cajamarca. Third-party defendant in Action #1 and the defendant in Action #2, Morrision moves for summary judgment dismissing NYCTA's third-party complaint as well as Chiquillo's complaint. The defendants NYCTA and Epstein move for summary judgment to dismiss the complaint in both actions.

In Action # 2, plaintiff Estate of Chiquillo moves for summary judgment against all defendants in that action and defendant Parkes move for summary judgment dismissing the complaint.

The primary basis of all of the summary judgment motions is an undated decision by Administrative Law Judge Myles Cunningham of the New York State Department of Motor Vehicles (DMV). ALJ Cunningham had conducted a hearing to "investigate a fatal accident and to

determine if any action should be taken against the driving privileges of the respondents". The respondents were Parkes, Epstein and Ahmad. Parkes and Epstein attended the hearings and were represented by counsel. Ahmad attended a part of the hearing without counsel.

The Estate of Chiquillo, Cajamarca and Morrision were not present or represented at the hearing. The disposition by ALJ Cunningham was that Ahmad "failed to obey the red traffic signal and such violation contributed to the fatality". Ahmad's license was revoked. The matter was

"closed" as to Parkes and Epstein.

The moving parties rely on Ryan v NY Telephone Co, 62 NY2d 494 [1984] for the proposition that the doctrine of collateral estoppel is applicable to quasi judicial determinations of administrative agencies. This is a correct statement of a general principal of law. However, [*2]the party against whom collateral estoppel is asserted must have been given a full and fair opportunity in the administrative process as the Ryan court noted:

A determination whether the first action or proceeding

genuinely provided a full and fair opportunity requires

consideration of the "the realities of the [prior] litigation',

including the context and other circumstances which***

may have had the practical effect of discouraging or deterring

a party from fully litigating the determination which is now asserted

against him". (People v Plevy, 52 NY2d 58, 65.) Among the

specific factors to be considered are the nature of the forum and

the importance of the claim in the prior litigation, the incentive

and initiative to litigate and the actual extent of litigation, the

competence and expertise of counsel, the availability of new evidence,

the difference in the applicable law and the foreseeabililty of future

litigation.

A cursory review of the transcript of the October 6, 2005 administrative proceeding makes clear that Ahmad was not given a " full and fair opportunity" to contest the allegations against him. The hearing commenced at 9:30 a.m. Ahmed was not in attendance. The attorneys for Parkes appropriately requested an adjournment. It was denied. The hearing proceeded without Ahmad. Parkes was examined for approximately 28 pages of transcript, Epstein was next examined for approximately 10 pages of testimony. At page 37, the hearing was "closed". Apparently, Mr. Ahmad than arrived at the

hearing explaining that he was late because he took the wrong train. The hearings were than reopened and Ahmad was sworn. He was not advised of his right to counsel and he was not present for the testimony of Parkes and Epstein and thus had no opportunity to cross examine them. By any standard, the hearing did not meet the standard set forth by the Ryan court. The DMV's findings are not dispositive of the issues in these actions. In addition, not all parties in these actions were part of the DMV proceedings. (Fratangelo v. Benson, 294 AD2d 88 [4th Dept 2002]; Martin v.Zoslasky, 172 Misc 846 [Kings County 1997]).

The Estate of Chiquillo also moves for summary judgment arguing the fact that there is clear liability for the death of a pedestrian. However, since the doctrine of collateral estoppel is not being applied, there are material issues of fact as to whether Ahmad , Parkes or Epstein caused the accident or to what degree each of them may have caused the accident.

Accordingly, all of the motions for summary judgment are denied.

The foregoing constitutes the decision and Order of the Court. [*3]

_______________________

Robert J. Miller

J.S.C.

May 6, 2009