[*1]
Lichti v Marovic
2015 NY Slip Op 51187(U) [48 Misc 3d 1222(A)]
Decided on August 13, 2015
Supreme Court, Kings County
Ash, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2015
Supreme Court, Kings County


Jason Lichti, Plaintiff,

against

Joseph Marovic, ROBERT MAROVIC and PIPEX MECHANICAL CORP., Defendant(s).




501122/2013



Plaintiff was represented by Michael H. Joseph, Esq., White Plains, NY; Defendants were represented by Neil Sznitken, Esq., Silberzweig & Sznitken, Brooklyn, NY.


Sylvia G. Ash, J.

The following papers numbered 1 to 5 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/



Petition/Cross Motion and



Affidavits (Affirmations) Annexed1-3



Opposing Affidavits (Affirmations)



Reply Affidavits (Affirmations)4, 5



After oral argument and upon the foregoing papers, the motion by Plaintiff, JASON LICHTI, for summary judgment against Defendants, JOSEPH MAROVIC and ROBERT MAROVIC (hereinafter collectively referred to as "Marovics") is GRANTED. Plaintiff's motion for summary judgment against PIPEX MECHANICAL CORP. ("PMC") is DENIED. Marovics' motion to vacate the note of issue is GRANTED.



Background


On November 2, 2012, Plaintiff was involved in a road rage altercation with the Marovics in the vicinity of 100 California Road, in the town of Eastchester, New York, resulting in physical injury to Plaintiff. On December 12, 2013, the Marovics each plead guilty to assault in the third degree as a result of their actions during the altercation with Plaintiff. At the time of the incident, the Marovics were driving a truck owned by their employer, PMC, bearing the Pipex logo. Plaintiff alleges that the Marovics were acting within their scope of employment when the [*2]altercation occurred.



With the instant motion, Plaintiff argues he is entitled to summary judgment against the Marovics because they each plead guilty to assault in the third degree, which conclusively establishes the elements on Plaintiff's assault and battery causes of action. Specifically, Plaintiff argues that an issue decided in a criminal proceeding may be given a preclusive effect in a subsequent civil action under the doctrine of collateral estoppel, and that such doctrine precludes the Marovics from contesting their liability in this action.



Plaintiff also argues that he is entitled to summary judgment against PMC because he served a notice to admit demanding the Marovics and PMC admit that the Marovics were acting within the scope of their employment when the incident occurred and Defendants have failed to respond to said notice to admit.



In opposition to Plaintiff's motion and relying on the Court of Appeals case, Gilberg v Barbieri, 53 NY2d 285 [Ct App 1983], the Marovics argue that the Court must consider the circumstances surrounding the plea and that such consideration should result in a finding that collateral estoppel does not apply to the case herein. The Marovics submit that they only plead guilty to avoid going to jail in order to take care of their families. By way of affidavit, the Marovics state that Plaintiff was the instigator of the confrontation. They also state that the altercation, which occurred near their residence, had nothing to do with their employment with PMC. The Marovics further argue that service of a notice to admit on this issue was improper since it is an important issue in the case.



By way of cross-motion, Defendants move to vacate the note of issue because discovery is incomplete in that depositions have not been held and medical examinations by Defendants have not been conducted.



Discussion


"To prove civil assault and battery, the plaintiff need only show that the defendant intended to inflict personal injury on her without her consent, that the defendant took action to carry out that intent, and that he did in fact injure her" (Buggie v Cutler, 222 AD2d 640, 641 [2d Dept 1995]). Under New York Penal Code §120.00, a person is guilty of assault in the third degree when they intentionally cause a physical injury to another person.



"Where a criminal conviction is based upon facts identical to those 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 issue of liability" (Hartman v Milbel Enters., 2015 NY App. Div. LEXIS 6184; 2015 NY Slip Op 06314, *5-6 [2d Dept 2015][citing City of New York v College Point Sports Assn., Inc., 61 AD3d 33, 41 [2d Dept 2009]]). "The doctrine applies whether the conviction results from a plea or a trial" (Id.). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" (Id.). "The party against whom [*3]preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Id.).



Whether a party had a full and fair opportunity to litigate a prior determination involves a practical inquiry into "the realities of litigation" that include consideration of factors such as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indication of a compromise verdict, differences in the applicable law and foreseeability of future litigation'"(Gilberg v Barbieri, 53 NY2d at 292).



In DeSantis v Manhasset Union Free Sch. Dist., the Second Department Appellate Division held that the defendant's guilty plea to assault in the third degree in the criminal action stemming from the same incident that was the subject of the civil action precluded that defendant from litigating the issue of liability for assault and battery against the plaintiff in the civil action (274 AD2d 373 [2d Dept 2000]).



Here, the issue in the instant action is identical with the issue presented in the prior criminal proceeding, namely, whether the Marovics intentionally caused unwanted injury to Plaintiff. By taking the plea deal, the Marovics admitted that they intentionally caused injury to Plaintiff, thereby establishing their liability for assault and battery in this action. Moreover, any culpable conduct by Plaintiff can be raised by the Marovics at trial on the issue of damages (see id.). As such, Plaintiff's motion for summary judgment on liability against the Marovics must be granted.



Now, turning to whether Plaintiff is entitled to summary judgment as against PMC, "[a] notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable and is certainly not intended as a means of compelling an opposing party to admit to the most fundamental and material of the contested issues of fact " (Washington v Alco Auto Sales, 199 AD2d 165, 165 [1st Dept 1993]).



Here, Plaintiff's notice asks PMC to admit that the Marovics were acting within the scope of their employment during their altercation with Plaintiff, a fundamental and material issue with regards to PMC's liability to Plaintiff, if any. Because Plaintiff's notice to admit was improper in this regard, PMC was under no obligation to furnish admissions in response to Plaintiff''s notice (see Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6, 6 [1st Dept 2000]). As such, Plaintiff is certainly not entitled to summary judgment against PMC on the basis that it failed to respond to Plaintiff's notice to admit.



Finally, Defendants' cross-motion to strike the note of issue must be granted. Plaintiff does not dispute that depositions and medical examinations have yet to go forward.



Accordingly, it is hereby



ORDERED that Plaintiff's motion for summary judgment against the Marovics is GRANTED; it is further



ORDERED that Plaintiff's motion for summary judgment against PMC is DENIED: and it is further



ORDERED that Defendants' motion to vacate the note of issue is GRANTED.

This constitutes the Decision and Order of the Court.

E N T E R,



_________________________



Sylvia G. Ash, J.S.C.