Supreme Court, Suffolk County, October 1, 2018 [*2]

Jacobson & Schwartz, LLP, Jericho, for defendant.

WeitzPascale, Mineola, for Ronald C. Russo and another, plaintiffs.

It is ordered that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's application to reargue and/or renew the orders of Justice W. Gerard Asher of this court dated January 14, 2016, and September 27, 2016 (mot sequence No. 007), is denied; and it is further ordered that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's application for an order authorizing the deposition of defendant by his counsel while in custody at the Metropolitan Detention Center, Brooklyn, New York (mot sequence No. 009) is denied; and it is further ordered that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's motion to quash plaintiff's subpoena directed to defendant's examining physician is denied, and as plaintiff has withdrawn his request to subpoena physicians who examined plaintiff for plaintiff's workers' compensation carrier, that portion of defendant's motion is rendered moot (mot sequence No. 008); and it further ordered that the action is set for trial on October 4, 2018, as jury selection, under the supervision of this court, was completed on September 25, 2018.{**61 Misc 3d at 858}

This is an action by plaintiffs Ronald C. Russo and Christina Russo to recover damages from defendant Brian Dement for physical injuries caused to plaintiff Ronald C. Russo on November 9, 2013, as a result of an incident that occurred at a premises located on Veterans Memorial Highway, Commack, Suffolk County, New [*3]York. Plaintiffs commenced the action by filing a summons and complaint with the Suffolk County Clerk on December 23, 2013. Defendant, through his counsel, served an answer dated January 29, 2014, denying the allegations of the complaint and raising five affirmative defenses.

As a consequence of the incident, defendant was arrested, resulting in the filing of superior court information No. 570-15 before the Honorable Richard J. Ambro of this court on March 13, 2015, at which time defendant pleaded guilty to assault in the second degree (Penal Law § 120.05 [4]), admitting that he recklessly caused serious physical injury to plaintiff by means of a deadly weapon or dangerous instrument, a knife. During his guilty plea, defendant acknowledged that he waived his rights to trial on the issues, to testify on his own behalf, to call witnesses or submit evidence on his behalf and that he waived his right to appeal. Defendant was subsequently sentenced to a limited period of incarceration and five years' probation. Defendant never appealed his conviction, moved to vacate his conviction, nor made any other post-sentence motion addressing the conviction.

Subsequent to entry of defendant's guilty plea, plaintiffs moved for summary judgment in this action arguing that defendant's conduct was sole proximate cause of plaintiff's injuries, submitting in support of the motion a certificate of defendant's conviction and a copy of the transcript of defendant's guilty plea. Defendant did not oppose the motion. By order dated January 14, 2016, Justice W. Gerard Asher granted plaintiffs' motion.

After the entry of the order, a deposition of plaintiff was scheduled for September 20, 2016. Defendant's counsel argued that he had a right to examine plaintiff about the facts surrounding the incident, plaintiffs' counsel refused to allow such questioning, and objected stating that the order of January 14, 2016, had resolved all issues of liability between the parties. The deposition was adjourned as defendant's counsel wished to have his claim resolved by Justice Asher at a conference scheduled for September 27, 2016. (Defendant has submitted a partial transcript of this colloquy in support of his motion to{**61 Misc 3d at 859} reargue and renew [mot sequence No. 007].) On September 27, 2016, Justice Asher issued a written order that stated in pertinent part:

"The issue of liability on the parts of plaintiff's Russo & Weitsen has been previously determined pursuant to the decision and order dated January 14, 2016, when plaintiffs' unopposed motion for partial summary judgment on the issue of liability has been granted. Therefore, no issues exist as to comparative negligence or culpable conduct of plaintiffs."

Defendant was not allowed to inquire concerning the facts of the incident at the subsequent deposition of plaintiff. A note of issue was filed, coplaintiff Weitsen settled his action, this action was placed on the court's trial calendar and appeared before the Calendar Control Part (CCP) Justice for conferences, jury selection was commenced and the jury disbanded, and on September 17, 2018, the action was sent to this part by the CCP Justice for this court to supervise jury selection and for trial. After conference the court adjourned jury selection to September 24, 2018, as defendant's counsel had indicated that he was filing the orders to show cause to reargue/renew (mot sequence No. 007) and to quash subpoenas (mot sequence No. 008).

Defendant never appealed the orders of January 14, 2016, and September 27, 2016, but now brings this motion (mot sequence No. 007) to reargue and renew those orders.

Initially the court notes that Justice Asher retired on December 31, 2017, and is no longer available to hear a motion to reargue/renew the decisions he rendered in this action.

In his submissions, as well as in oral argument before the court on these combined applications, defendant fails to recognize that a motion to renew and/or reargue is an improper vehicle to challenge a judgment or order granted upon default (see Hutchinson Burger, Inc. v Bradshaw, 149 AD3d 545 [1st Dept 2017]; Country Wide Home Loans, Inc. v Dunia, 138 AD3d 533 [1st Dept 2016]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Matter of Kurth v Susskind, 200 AD2d 572 [2d Dept 1994]; Rubinfeld v County of Suffolk, 2007 NY Slip Op 34601[U] [Sup Ct, Suffolk County, Sept. 17, 2007, No. 24637-{**61 Misc 3d at 860}97]; Stein v Doukas, 2010 NY Slip Op 34062[U] [Sup Ct, Suffolk County, Dec. 22, 2010, No. 200809909]). Counsel may also wish to refer to the CPLR 2221 and in particular Patrick M. Connors, 2016 Supplementary Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C2221:4, 2018 Pocket Part at 113).

[1] As defendant has not moved to vacate his default in opposing Justice Asher's order of January 14, 2016, the motion to renew and reargue must be denied on this basis alone.

[2] Even if defendant had moved to vacate his default, was successful in establishing a reasonable excuse to vacate, and even if this court found his argument that the decision of the Court of Appeals in Rodriguez v City of New York (31 NY3d 312 [2018]) was a "change" in law raising an issue of a meritorious defense that this court could use to authorize vacatur, the court would ultimately find that the holding in Rodriguez is inapplicable to this case.

Based upon the situation presented to this court as a result of the prior orders of Justice Asher, the holding in Rodriguez does not support defendant's counsel's interpretation of its applicability to this case. Unlike this action, the trial court in Rodriguez had granted plaintiff partial summary judgment only settling and determining the liability of defendant under the facts of what was a motor vehicle accident; the issue of plaintiff's potential culpability, although raised as an affirmative defense, was not determined.

There have been 11 decisions in the Second Department applying the principles of Rodriguez since it was decided on April 3, 2018. All but one of those decisions involved motor vehicle accidents, the majority of them involving a plaintiff whose vehicle had been struck in the rear. Defendant's broad claim that the holding in Rodriguez opens all "damages trials" to a defendant being able to litigate the culpable conduct and contributory negligence of a plaintiff is not supported by any of them, nor by Rodriguez itself. The basic principle to be drawn from Rodriguez is that "[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (see Rodriguez at 324-325; Outar v Sumner, 164 AD3d 1356 [2d Dept 2018]).

Rather, post-Rodriguez, the Second Department has recognized that where a defendant fails to submit either his/her own{**61 Misc 3d at 861} affidavit, or that of another person with personal knowledge, in opposition to a motion for summary judgment on the issue of liability, the defendant has failed to raise a triable issue of fact, and a complete determination of the liability of both parties is [*5]appropriate (see Lazarre v Gragston, 164 AD3d 574 [2d Dept 2018]). It has also interpreted Rodriguez to mean that if plaintiff's proof has established both plaintiff's freedom from negligence and defendant's negligence in causing the accident, a complete determination of liability is warranted (see Lopez v Dobbins, 164 AD3d 776 [2d Dept 2018]). Where there is no issue of plaintiff's conduct producing the injury, the only issues at a "damages trial" are those related to plaintiff's disability and other items of damages related thereto. Here, in plaintiffs' motion papers before Justice Asher, plaintiffs argued in paragraph 14: "That based upon defendant's plea allocution, there is certainly no question of fact that the defendant, Brian Dement's reckless, careless and negligent actions were the sole proximate cause of plaintiff's injuries." As the law pre-Rodriguez required plaintiff to establish his freedom from comparative negligence to be entitled to summary judgment on the issue of liability, defendant had the opportunity to support his present claims concerning plaintiff's alleged conduct in an attempt to raise a question of fact to defeat summary judgment. Instead he chose not to submit any opposition. As defendant failed to raise a triable issue of fact, Justice Asher made a determination of complete liability against defendant. As a result, at this trial the issue of plaintiff's comparative fault is not at issue.

Unlike the situation faced in Rodriguez, the plea of guilty by defendant to a "reckless assault" in violation of Penal Law § 120.05 (4) before Justice Ambro, and the orders of Justice Asher, put to rest all issues of defendant's "reckless" conduct in injuring plaintiff, as well as claims of plaintiff's culpable conduct (defendant's 1st affirmative defense), assumption of risk (defendant's 2nd affirmative defense), justification (defendant's 5th affirmative defense) and, to the extent that defendant may claim failure to mitigate damages as a result of plaintiff's conduct during the incident of November 9, 2013, that part of defendant's 4th affirmative defense. Although the orders of Justice Asher did not specifically dismiss those affirmative defenses, the effect of his orders is to negate them; therefore to clarify this, the court dismisses defendant's 1st, 2nd, and 5th affirmative defenses, as well as that part of his 4th affirmative{**61 Misc 3d at 862} defense referred to. This leaves as viable only defendant's 3rd affirmative defense relating to CPLR 4545 offsets, and that portion of defendant's 4th affirmative defense that may otherwise relate to any claim of mitigation of damages outside of the incident relating to plaintiff's injuries.

This result was established by Justice Asher's decision of January 14, 2016, on plaintiffs' unopposed motion, and by Justice Asher's order of September 27, 2016. That later order was brought about by defendant's counsel claim at the scheduled deposition of plaintiff on September 20, 2016, that he had a right to examine plaintiff concerning the occurrence on November 9, 2013, and plaintiffs' counsel's statement that the order of January 14, 2016, had resolved all issues of liability between plaintiffs and defendant. The submitted transcript of September 20, 2016, shows defendant's counsel's desire to resolve the issue before Justice Asher on September 27, 2016, in essence an objection at a deposition for which court intervention was requested.

Justice Asher's written order of September 27, 2016, resolved any ambiguity claimed by defendant's counsel in the order of January 14, 2016. The pertinent part of that order, as quoted above, makes it clear that no issues existed as to comparative negligence or culpable conduct of plaintiff that would make the holding in Rodriguez applicable.

As defendant could not successfully appeal the order of January 14, 2016, issued upon his default, as there is no right to appeal an order granted upon default by the defaulter, nor did [*6]defendant attempt to appeal the order of September 27, 2016, this determination stands as the law of the case. This court cannot now disturb that finding (see People v Evans, 94 NY2d 499 [2000]; State of N.Y. Higher Educ. Servs. Corp. v Starr, 158 AD2d 771 [3d Dept 1990]; George W. Collins, Inc. v Olsker-McLain Indus., 22 AD2d 485 [4th Dept 1965]).

As both defendant's negligence in causing the injury and plaintiff's freedom from culpable conduct or contributory negligence have been established by Justice Asher, plaintiff's conduct at the time of the accident is not an issue at this "damages" trial.

Even if renewal was appropriate, plaintiffs' submissions on the motion before Justice Asher established both defendant's negligence and plaintiff's freedom from comparative fault. The{**61 Misc 3d at 863} transcript of defendant's plea of guilty was submitted on plaintiffs' motion in this civil action and by defendant on this motion. It shows defendant acknowledging his guilt, admitting his holding his knife recklessly causing injury, and realizing that he stabbed plaintiff with the knife requiring surgery as a result of his reckless conduct. When Justice Ambro accepted defendant's plea, defendant acknowledged that he knew he was waiving his right to trial on the issues involved in the charges, his right to testify on his own behalf, his right to call witnesses or submit evidence on his behalf and his right to appeal.

[3] By the affidavit he signed on September 9, 2018, before his attorney as notary, defendant now attempts to claim that "I do believe that all my actions were justifiable" in contradiction of his sworn statements made 31/2 years before under oath to Justice Ambro. The doctrine of collateral estoppel precludes him from re-litigating the issues resolved by those sworn statements he made upon his plea of guilty.

The doctrine of collateral estoppel is based upon the principle that it is not fair to permit a party to re-litigate an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point (see Gilberg v Barbieri, 53 NY2d 285 [1981]). Thus, where a criminal conviction is based upon facts identical to those in 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 re-litigating the issue of liability (see City of New York v College Point Sports Assn., Inc., 61 AD3d 33 [2d Dept 2009]; Blaich v Van Herwynen, 37 AD3d 387 [2d Dept 2007]). Here, defendant's conviction upon his plea of guilty arose out of the same events as those alleged in this action, and his admissions upon allocuting to the charge established his civil liability for damages for recklessly and/or negligently causing plaintiff's personal injuries (see Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; Nachum v Ezagui, 83 AD3d 1017 [2d Dept 2011]).

All that is required to give collateral estoppel effect to a criminal conviction is that there be an identity of issues in the criminal and subsequent civil actions and that the defendant had a full and fair opportunity to contest the issues raised in the criminal proceedings (see Grayes v DiStasio, 166 AD2d 261 [1st Dept 1990]). The allocution in the criminal proceeding acts as an admission in this civil lawsuit. The transcripts establish{**61 Misc 3d at 864} that defendant was represented by counsel throughout the criminal proceeding, he pleaded guilty and admitted under oath to the facts giving rise to the causes of action set forth in the superior court information and he knowingly [*7]waived his rights as indicated above. A criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from re-litigating the issue (see City of New York v College Point Sports Assn., Inc.).

Defendant now argues in his recent affidavit that his actions were justified by plaintiff's alleged conduct. The court notes that defendant did not raise any claims of provocation or self-defense during his plea allocution, nor is there any indication that he did so at his sentencing, or at anytime afterwards in the criminal proceeding. Defendant is collaterally estopped from making any attempted defense in this action that he was somehow provoked by plaintiff, or acted in self-defense as he had a full and fair opportunity to raise that defense in the criminal case, yet he chose not to. Under the doctrine of collateral estoppel, he cannot now re-litigate these issues when he had a full and fair opportunity to litigate them in his criminal proceeding, or raise a defense in the civil proceeding that he did not raise in the criminal proceeding (see Nachum v Ezagui).

Therefore, even if defendant had moved to vacate his default in opposing plaintiffs' motion resulting in the order of January 14, 2016, and the court found he provided a reasonable excuse in doing so, he has no "meritorious defense" as he is collaterally estopped from presenting his claim of plaintiff's culpable conduct/contributory negligence and his motion would have been denied (see Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557 [2d Dept 2014]; Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2d Dept 2017]; Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d 748 [2d Dept 2018]).

Further, at oral argument of these motions, when faced with questions as to why no earlier motion to vacate the order of January 14, 2016, had been made, defendant's counsel's attempt to provide as a reasonable explanation that he thought that the law at the time of Justice Asher's decision precluded him from arguing plaintiff's alleged culpable conduct/contributory negligence is unconvincing. It is contradicted by his statements in the deposition transcript of September 20, 2016, where he argues that he believed that the law at that{**61 Misc 3d at 865} time allowed him to ask plaintiff questions about his alleged culpable conduct, which is why he presented that issue to Justice Asher on September 27, 2016. If that was defendant's position on the law, pre-Rodriguez, then he should have opposed the plaintiffs' cross motion raising those issues concerning plaintiff's conduct. It also is contradictory to other positions taken by defendant's counsel at oral argument. Without such a reasonable excuse for the default, the court would not even need to consider a claim of a meritorious defense (see One W. Bank, FSB v Valdez, 128 AD3d 655 [2d Dept 2015]; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044 [2d Dept 2014]). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2d Dept 2007]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2d Dept 2000]). Reliance upon poor advice or strategy has been held not to be a reasonable excuse for a default (see Chase Home Fin., LLC v Minott, 115 AD3d 634 [2d Dept 2014]; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047 [2d Dept 2016]), and law office failure of this nature has been held not to be a reasonable excuse (see Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903 [2d Dept 2008]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2d Dept 2011]; Cantor v Flores, 94 AD3d 936 [2d Dept 2012]; LaSalle Bank, N.A. v LoRusso, 155 AD3d 706 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610 [2d Dept 2018]).

Defendant's motion (mot sequence No. 007), framed as one to reargue/renew the orders of Justice Asher, is denied.

[4] As the need for a deposition of defendant is tied to the ability of defendant to litigate plaintiff's alleged culpable conduct/contributory negligence, the court next addresses defendant's order to show cause for the issuance of a subpoena permitting the deposition of defendant while in custody at the Federal Metropolitan Detention Center in Brooklyn, New York (mot sequence No. 009). That motion is necessarily denied, as the court has denied defendant's order to show cause to reargue/renew (mot sequence No. 007) and has held that defendant is collaterally estopped from re-litigating the issues resolved by his guilty plea and the orders of Justice Asher. Therefore, there is no relevant testimony that defendant could{**61 Misc 3d at 866} offer relating to the trial of plaintiff's damages. Just as a prisoner has no absolute right to appear personally at a civil action where he is a party (see Pope v Pope, 198 AD2d 406 [2d Dept 1993]; Nussbaum v Steinberg, 269 AD2d 192 [1st Dept 2000]), a prisoner has no absolute right to be deposed, absent establishing there is relevant evidence he could provide.

Further, the court notes that the arguments of delay and laches raised by plaintiffs' counsel in his omnibus opposition to all three orders to show cause, as well as at oral argument, have some merit. The record of this action and the companion declaratory judgment action brought by defendant's insurance carrier (Cambridge Mutual Fire Ins. Co. v Dement, Sup Ct, Suffolk County, index No. 606979/2015), and now assigned to this court, show that the law firm representing defendant was aware of his custody status at least 11 months ago. By waiting until the last minute to obtain either defendant's presence by an order of a U.S. District Court judge after at least one jury had already been disbanded, and then advising the court of "the necessity" to bring this order to show cause for defendant's deposition after the case had been assigned to this Part to supervise jury selection resulting in the disbanding of another jury panel and requiring the adjourning of jury selection for another week, defendant has caused significant delay as a result of issues which should have been brought forward much earlier. This unexplained delay in acting to secure defendant's presence or deposition when this case had been before the CCP Justice seven times starting on November 28, 2017, could also have formed the basis for denial of defendant's application.

Defendant's motion by order to show cause to quash subpoenas issued by plaintiff to defendant's examining physician and three physicians who examined plaintiff for plaintiff's worker's compensation insurance company is denied.

At oral argument plaintiffs' counsel withdrew the subpoenas for the worker's compensation examining physicians, making that portion of defendant's motion moot.

The remaining portion of defendant's motion lacks merit and is denied. It is well settled law that where defendant retains a physician to examine plaintiff in relation to injuries plaintiff claims to have sustained as a result of an accident, and his/her report is exchanged pursuant to [*9]CPLR 3101 (d), plaintiff may call such physician and elicit the substance of his/her report{**61 Misc 3d at 867} (see Gilly v City of New York, 69 NY2d 509 [1987]; Bevilacqua v Gilbert, 143 AD2d 213 [2d Dept 1988]; Hughes v Webb, 40 AD3d 1035 [2d Dept 2007]).