I

Petitioner, Dolary K., has moved for summary judgment upon the family offense petition she filed against her spouse, Kamrul I., on August 14, 2015. Upon review of the papers in support and in opposition, and for the reason stated herein, the motion is granted.

On August 14, 2015 Dolary K., who is also known as Dolary K.D., filed a family offense petition against her spouse, Kamrul I., who is apparently also known as Mohammad K.I. (see [*2]Fam. Ct. Act §821). The family offense petition essentially alleges that respondent committed one or more of the family offenses enumerated in Family Court Act §812 (1) against the petitioner on two separate dates: August 3, 2015 and August 12, 2015.

There is no dispute that the respondent was arrested by the New York City Police Department on August 17, 2015. Probable cause for this arrest was based upon the incidents which are alleged in the misdemeanor complaint filed against respondent in the Queens County Criminal Court under Docket Number 2015QN041142 (see People v. Bigelow, 66 NY2d 417, 423 [1985]; People v. Guthrie, 25 NY3d 130, 133 [2015]).

The motion papers include various documents relating to the criminal action against Mr. I. The accusatory part of the misdemeanor complaint (Criminal Procedure Law §100.30 [2]) states that respondent allegedly committed the crimes of Assault in the Third Degree (P.L. §120.00 [1]), Criminal Obstruction of Breathing or Blood Circulation (P.L. §121.11), Aggravated Harassment in the Second Degree (P.L. §240.30 [4]), Endangering the Welfare of a Child (P.L. §260.10 [1]), and Criminal Possession of Weapon in the Fourth Degree (P.L. §265.01 [2]). The misdemeanor complaint further states that these crimes were allegedly committed "on or about August 3, 2015 between 2:30 AM and 3:00 AM inside of XXX-XX 93 Avenue Bsmt., County of Queens, State of New York".

Additionally, the factual portion of the misdemeanor complaint (Criminal Procedure Law §100.30 [3]), states that:

The deponent [police officer] states that she is informed by the complainant, DolaryD., that at the above mentioned date, time and place of occurrence, the defendant, Mohammad I., who is her husband, pushed a pillow over her face, impeding her breathing.

Deponent is further informed by the complainant that the defendant stated in sum and substance that he is going to kill the complainant.

Deponent is further informed by the complainant that the above mentioned actions of the defendant occurred within view of their nine year old son, A.I. and their five year old daughter, M.I.

Deponent is further informed by the complainant that the above mentioned actions of the defendant caused her substantial pain, annoyance and alarm.

The Court has been presented with a Certificate of Disposition issued by the Clerk of the Criminal Court, Queens County. That certificate is issued for the action commenced under Docket Number 2015QN041142 and entitled People of the State of New York v. Mohammad I. The certificate states that the defendant's date of birth is "01/17/1978", that his address is "XXX-XX 93 Avenue, Queens, NY", that his NYSID number is "13184243M", that defendant was [*3]arrested on "08/17/2015", and lastly, that on October 19, 2015 the defendant pled guilty to the violation of Disorderly Conduct (P.L. §240.20) before Judge Elisa Koenderman and that respondent was sentenced the defendant to a Conditional Discharge for one year. The Criminal Court also issued an order of protection against Mr. Islam for a period of two years pursuant to Criminal Procedure Law §530.12 (5), a copy of which is appended to the motion.

Petitioner has also provided this Court with a copy of the minutes of the plea proceedings conducted before Judge Koenderman of the Criminal Court on October 19, 2015.

The following excerpt (ellipses omitted) of the colloquy from the minutes is pertinent to petitioner's motion for summary judgment upon her family offense petition:

COURT: . . . the defendant is related to the victim in that they are legally married and they have a child in common? Does he admit, deny or stand mute as to that allegation?

Defense Counsel: Admits.

COURT: . . . This is a first arrest. Will the People offer disorderly conduct?

ADA: Yes.

COURT: Waiver formal allocution, prosecution by information, and does he standready for sentence?

Defense Counsel: Yes.

COURT: Sir, are you pleading guilty to the added and reduced charge of disorderlyconduct, a violation and not a crime, with the understanding that the other chargeswill be dismissed in exchange for a sentence of conditional discharge?

DEFENDANT: Yes.

COURT: Have you discussed that with your attorney?

DEFENDANT: Yes.

COURT: Are you pleading guilty freely and voluntarily?

DEFENDANT: Yes.

COURT: Are you pleading guilty because you are guilty?

DEFENDANT: Yes.

COURT: Plea acceptable. Is there anything you want to say before sentence is imposed? Counsel, did you discuss with him if applicable, any potential adverse immigration consequences as a result of this plea to disorderly conduct?

Defense Counsel: Yes, Your Honor.

COURT: Mr. I., I do not know what impact, if any, this plea will have on your immigration status. Any plea of guilty in a criminal case may conceivably at some point in time subject you to involuntary deportation, as well as exclusion from admission to this country or denial of naturalization. Do you understand that, sir?

DEFENDANT: Yes.

COURT: Do you wish to maintain your guilty plea?

DEFENDANT: Yes.

COURT: Plea acceptable. Sentence is conditional discharge. You must lead a law abiding life for one year, continue to stay away from the complaining witness and have no contact except for contact permitted by a visitation or custody order for two years. Do you understand?

DEFENDANT: Yes.

II

The petitioner contends that based upon the proceedings conducted before the Criminal Court on October 19, 2015, as evidenced by the Certificate of Disposition issued by the Clerk of the Criminal Court, respondent should be collaterally estopped from denying the allegations in the family offense petition, and that summary judgment upon the petition should be granted in her favor.

While there is no express provision for summary judgment in a family offense proceeding commenced under article 8 of the Family Court Act, these proceedings are civil proceedings (Fam. Ct. Act §812 [2] [b]; Matter of Richardson v. Richardson, 80 AD3d 32, 37 [2010]; Matter of Julie G. v. Yu-Jen G., 81 AD3d 1079, 1081 [2011]; Matter of Pamela N. v. Neil N., 93 AD3d 1107, 1108 [2012]). Thus, summary judgment may be granted to either party "when it has been clearly ascertained that there is no triable issue of fact outstanding. Summary judgment does not deny the parties a trial; it merely ascertains that there is nothing to try" (Matter of Suffolk County [*4]Department of Social Services [Michael V.] v. James M., 83 NY2d 178, 182 [1994] [citation omitted]; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sommer v. Federal Signal Corporation, 79 NY2d 540, 554-555 [1992]; Ferrante v. American Lung Association, 90 NY2d 623, 631 [1997]; Matter of Kyle M., 5 AD3d 489, 490-491 [2004]).

"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action. Viewing the evidence in the light most favorable to the non-moving party, if the nonmoving party, nonetheless, fails to establish a material issue of fact, summary judgment for the movant is appropriate" (Nomura Asset Capital Corporation v. Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015] [internal citations omitted]; see also Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Vega v. Restani Construction Corp., 18 NY3d 499, 503 [2012]; Jacobsen v. New York City Health and Hospitals Corporation, 22 NY3d 824, 833 [2014]; Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2014]; Torres v. Jones, 26 NY3d 742, 762-763 [2016]).

Here the petitioner has submitted evidence that the respondent, Kamrul I., who also is known as Mohammad K.I., is her husband, that Mr. I. was arrested on August 17, 2015, that he was charged with four crimes in the Criminal Court arising out of an incident which occurred on August 3, 2015. The victim of the charged crimes was his wife, Dolary D., who is also known as Dolary K.D. Petitioner has also submitted presumptive evidence (Criminal Procedure Law §60.60 [1]) that establishes that respondent was convicted of the offense of Disorderly Conduct by the Criminal Court on October 19, 2015, that he was sentenced to a Conditional Discharge for one year,^[FN1] and that the Criminal Court issued an order of protection against him pursuant to Criminal Procedure Law §530.12 and that such order, inter alia, directs that respondent stay away from petitioner, her home, place of business or employment, that he commit no further family offenses against petitioner and their two children, and that he have no communication with Dolary D., except as authorized by a subsequent custody of visitation order issued by the Supreme Court or Family Court.

A review of the Certificate of Disposition reflects that it identifies the defendant, Mohammad I. by date of birth, his address and NYSID number. Thus, the Certificate of Disposition issued by the Criminal Court is sufficient to establish that the respondent was the [*5]defendant in the criminal action prosecuted under Docket Number 2015QN041142 (see People v. Melvin, 279 AD2d 481 [2001]; People v. Allen, 4 AD3d 479, 479-480 [2004], lv denied 2 NY3d 795 [2004]; People v. Switzer, 55 AD3d 1394 [2008], lv denied 11 NY3d 858 [2008]).

In an attempt to defeat petitioner's motion for summary judgment, respondent claims to have difficulty in ascertaining whether he was the defendant and whether his wife was the complainant in the criminal prosecution. This Court has no difficulty in making those determinations by a preponderance of the evidence (see Fam. Ct. Act §832).

Respondent's assertion that there is confusion in the identity of the parties as between the Criminal Court and the Family Court proceedings is meritless. The petitioner, Dolary K., who is referred to as Dolary D. in the misdemeanor complaint, as well as in the order of protection issued by the Criminal Court on October 19, 2015, is obviously the same individual.

Criminal actions are prosecuted in the name of the People of the State of New York as plaintiff rather than in the name of an individual complainant (Criminal Procedure Law §1.20 [1]). There is therefore nothing unusual in the fact that petitioner's statement is summarized by the police officer who swore to the misdemeanor complaint. Moreover, because the criminal action against Mr. I. was resolved by a plea rather than a trial, there is nothing unusual in the fact that Ms. K. is mentioned only tangentially in the plea minutes.

Similarly, respondent has failed to create a genuine and material issue of fact concerning the petitioner's claim that the parties are married, which is the basis for the Family Court's subject matter jurisdiction over this family offense proceeding. Respondent's claim that there is nothing which establishes that he is the spouse of the petitioner lacks merit. Dolary K. claims that she and Kamrul I. "are married" in the family offense petition. The misdemeanor complaint upon which respondent was convicted after waiving prosecution upon an information states that he is the husband of Dolary D. (Criminal Procedure Law §§100.10 [4]; 170.65 [3]; People v. Kalin, 12 NY3d 225, 228 [2009]; People v. Fernandez, 20 NY3d 44, 47 [2012]; People v. Dumay, 23 NY3d 518, 521 [2014]), and most significantly respondent admitted his marriage to the petitioner during his plea allocution before the Criminal Court Judge.

Equally significant is the fact that Mr. I. admitted his marriage to the petitioner in the verified petition for custody and visitation he filed in this Court on October 1, 2015. That petition states that "petitioner, Kamrul I., is the spouse of the respondent, Dolary K." and that "respondent, Dolary K., is the spouse of the petitioner, Kamrul I.."^[FN2] The doctrine of judicial estoppel prevents a litigant from taking one position in one judicial proceeding and thereafter taking an inconsistent position in a second proceeding simply because the litigant's interests have [*6]changed (see Anonymous v. Anonymous, 137 AD2d 739, 741 [1988]; Matter of Mukuralinda v. Kingombe, 100 AD3d 1431, 1432 [2012]; Barker v. Amorini, 121 AD3d 823, 824 [2014]). The respondent cannot assert that he is the spouse of Dolary K. in his verified custody and visitation petition, and then take the inconsistent position that he is not her spouse in the family offense petition she filed against him.

The only significant issue relates to whether the conviction in the criminal action conclusively establishes that respondent has committed a family offense against his wife as alleged in the family offense petition. In other words, should respondent be collaterally estopped from challenging the allegation that he committed the family offense of Disorderly Conduct on August 3, 2015 or August 12, 2015, a date of one of the incidents alleged in the family offense petition.

In order to prevail upon her motion for summary judgment, petitioner must establish that respondent's conviction for Disorderly Conduct in the Criminal Court was based upon the same incident that is alleged to constitute the family offense of Disorderly Conduct in the petition before this Court. For purposes of this motion, the fact that respondent was convicted upon a plea rather a verdict after a trial is of no significance (Matter of Denise GG., 254 AD2d 582, 583 [1998]; Matter of Rosie B., 154 AD2d 900, 901 [1989], lv denied 75 NY2d 702 [1989]; Matter of Nora M., 300 AD2d 922, 923 [2002]; Matter of Diana N., 34 AD3d 1058, 1059 [2006]; Matter of Leon K., 69 AD3d 856, 857 [2010]; Matter of Adriel R., 117 AD3d 744, 745 [2014]).

"A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct" (Matter of Tyreek A., 108 AD3d 527, 527-528 [2013] [citation omitted]; see also Matter of Ajay P., 60 AD3d 681 [2009]; Matter of Javon T., 64 AD3d 608 [2009]; Matter of Yamillette G., 74 AD3d 1066, 1067 [2010]; Matter of Idhailia P., 95 AD3d 1333, 1334 [2012]; Matter of Tavianna CC., 99 AD3d 1132, 1133 [2012], lv denied 20 NY3d 856 [2013]; Matter of Angelica M., 107 AD3d 803, 804 [2013]; Matter of Vivien V., 119 AD3d 596, 597 [2014]; Matter of Khalil L., 128 AD3d 698, 698-699 [2015], lv denied 26 NY3d 904 [2015]).

Undoubtedly, upon a motion for summary judgment based upon concurrent criminal proceedings (see Fam. Ct. Act §813 [2], [3]; People v. Wood, 95 NY2d 509, 512-513 [2000]; Richardson, 80 AD3d at 36-37; Matter of Molloy v. Molloy, 137 AD3d 47, 50-51 [2016]), "it is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the [family offense] petition" (Matter of Jewelisabeth JJ., 97 AD3d 887, 888 [2012]; see also, Matter of Tali W., 299 AD2d 413, 414-415 [2002]).

In these proceedings, there is sufficient proof that respondent's conviction for Disorderly Conduct in the Criminal Court on October 19, 2015 constitutes one or more of the allegations in [*7]the family offense petition filed by his wife in the Family Court on August 14, 2015. The misdemeanor complaint upon which respondent consented to be prosecuted alleges that he committed acts constituting four misdemeanors and the added violation of Disorderly Conduct against his wife, and that these acts were committed at XXX-XX 93rd Avenue in Queens County on August 3, 2015. The family offense petition alleges, in pertinent portion, that respondent committed acts constituting family offenses against Dolary K. in the bedroom of their residence on the night of August 3, 2015. The petition also alleges that respondent continues to reside at the address where the incident of August 3, 2015 occurred.

The minutes of the plea before Judge Koenderman in the Criminal Court reflect that respondent pled guilty to the added charge of Disorderly Conduct "with the understanding that the other charges will be dismissed in exchange for a sentence of conditional discharge", that he stated that the plea was freely and voluntarily made, and that he is pleading guilty "because I am guilty." Respondent cannot be "guilty" of committing the incident in Criminal Court and then claim he is "innocent" for the same act in a concurrent civil family offense proceeding before this Court.

The fact that respondent received a favorable disposition of the criminal charges which included a plea of guilty to a violation, which was added to the accusatory instrument to reduce the charge to which he was pleading guilty, and a sentence that included no jail time, does not provide a basis for respondent to continue to litigate the fact-finding part of this family offense proceeding. The criminal case clearly involved domestic violence which involved respondent's spouse, the incident for which he entered his guilty plea occurred on August 3, 2015, and the family offense petition specifically alleges that respondent committed one or more family offenses against his wife on August 3, 2015.

Accordingly, there is no issue left to litigate insofar as the incident alleged to have occurred on August 3, 2015 is concerned. Respondent's conviction for the offense of Disorderly Conduct in the criminal action conclusively establishes that he committed the family offense of Disorderly Conduct against the petitioner on August 3, 2015, as alleged in the family offense petition.

It is therefore,

ORDERED, that the motion is granted and the Court enters an order upon fact-finding in accordance with Family Court Act §832 that respondent committed the family offense ofDisorderly Conduct against the petitioner on August 3, 2015. The remaining allegations in thepetition are hereby dismissed, and the proceeding is continued for further proceedings in accordance with Family Court Act §833 and §836.

This constitutes the decision and order of the Court.