Opinion
336.1 CA 19-01669
08-20-2020
Keith T. HOLMES, Plaintiff-Appellant, v. Kevin D. MCCREA, Defendant-Respondent, and Stevon K. Spencer, Defendant-Appellant.
CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR PLAINTIFF-APPELLANT. BARTH SULLIVAN BEHR, LLP, BUFFALO (DOMINIC M. CHIMERA OF COUNSEL), FOR DEFENDANT-APPELLANT. MURA & STORM, PLLC, BUFFALO (SCOTT D. MANCUSO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BARTH SULLIVAN BEHR, LLP, BUFFALO (DOMINIC M. CHIMERA OF COUNSEL), FOR DEFENDANT-APPELLANT.
MURA & STORM, PLLC, BUFFALO (SCOTT D. MANCUSO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained in a motor vehicle accident. At the time of the accident, plaintiff was a passenger in a car owned by defendant Kevin D. McCrea (owner) and operated by defendant Stevon K. Spencer (driver), who later pleaded guilty to criminal possession of stolen property (CPSP) in the fifth degree ( Penal Law § 165.40 ) with respect to his use of the car at the time of the accident. The owner moved for summary judgment dismissing the complaint against him on the ground that the driver's criminal conviction constituted conclusive proof that he lacked permission to operate the car (see generally Vehicle and Traffic Law § 388 [1] ). Supreme Court granted the motion, and we affirm.
Initially, we agree with plaintiff and the driver that the court erred in concluding that plaintiff is collaterally estopped by the driver's conviction from raising an issue of fact with respect to permissive use. The doctrine of collateral estoppel is based on the principle that a party, or one in privity with a party, should not be allowed to relitigate an issue previously decided against it (see D'Arata v. New York Cent. Mut. Fire Ins. Co. , 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 [1990] ). " ‘A criminal conviction may be given collateral estoppel effect in a subsequent civil litigation if there is an identity of issues and a full and fair opportunity to litigate in the first action’ " ( Pink v. Ricci , 100 A.D.3d 1446, 1447, 954 N.Y.S.2d 306 [4th Dept. 2012] ; see S.T. Grand, Inc. v. City of New York , 32 N.Y.2d 300, 304-305, 344 N.Y.S.2d 938, 298 N.E.2d 105 [1973], rearg denied 33 N.Y.2d 658, 348 N.Y.S.2d 1030, 303 N.E.2d 710 [1973] ). Here, plaintiff lacked a full and fair opportunity to litigate the issue of permissive use because he had no involvement or interest in the underlying criminal proceeding (see generally D'Arata , 76 N.Y.2d at 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 ; Gilberg v. Barbieri , 53 N.Y.2d 285, 291-294, 441 N.Y.S.2d 49, 423 N.E.2d 807 [1981] ).
We nevertheless conclude that the owner met his initial burden on the motion of establishing his entitlement to judgment as a matter of law (see Harris v. Jackson , 30 A.D.3d 1027, 1029, 816 N.Y.S.2d 791 [4th Dept. 2006] ). We reject plaintiff's contention that the owner failed to meet his initial burden because his own evidentiary submissions—which included the deposition testimony of the driver that he did not steal the car, but instead "rented" it from the owner—raised an issue of fact with respect to permissive use. Although, as a general matter, "credibility is an issue that should be left to a fact finder at trial, ‘there are of course instances where credibility is properly determined as a matter of law’ " ( Sexstone v. Amato , 8 A.D.3d 1116, 1117, 778 N.Y.S.2d 635 [4th Dept. 2004], lv denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 [2004] ; see Finley v. Erie and Niagara Ins. Assn. , 162 A.D.3d 1644, 1645-1646, 79 N.Y.S.3d 796 [4th Dept. 2018] ). Here, the evidence included both the deposition testimony of the owner that the driver stole the car and the police report indicating that the owner timely reported the car stolen. Further, and critically, it is undisputed that the driver pleaded guilty to CPSP in the fifth degree, thereby establishing beyond a reasonable doubt that he knowingly possessed the stolen car (see Penal Law § 165.40 ). The plea established the very fact at issue: the driver was not a permissive user of the vehicle at the time of the accident (cf. Kemper Independence Ins. Co. v. Ellis , 128 A.D.3d 1529, 1531-1532, 8 N.Y.S.3d 770 [4th Dept. 2015] ). We thus conclude that the driver's self-serving deposition testimony that he had permission to operate the car, which is contrary to all other evidence including the driver's own criminal conviction, is incredible as a matter of law (see Carthen v. Sherman , 169 A.D.3d 416, 417, 94 N.Y.S.3d 34 [1st Dept. 2019] ; Kemper Independence Ins. Co. , 128 A.D.3d at 1531, 8 N.Y.S.3d 770 ; Smith v. New York Cent. Mut. Fire Ins. Co. , 13 A.D.3d 686, 688, 785 N.Y.S.2d 776 [3d Dept. 2004] ).
In opposition, plaintiff failed to raise an issue of fact with respect to permissive use (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).