Opinion
January 31, 1992
Appeal from the Supreme Court, Onondaga County, Reagan, J.
Present — Denman, P.J., Callahan, Green, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Defendant-husband concedes that, under the doctrine of collateral estoppel, he would be liable to plaintiff-wife for damages sustained as a result of his assault on her and that his guilty plea in a prior criminal action is a sufficient basis for the court to grant partial summary judgment on liability in the assault action. Defendant argues only that Supreme Court improperly struck his first affirmative defense of plaintiff's culpable conduct because that issue was not litigated or determined in the criminal proceeding. We agree.
In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff's words or actions immediately preceding the assault provoked defendant's assault (see, Kiff v. Youmans, 86 N.Y. 324, 330; Voltz v. Blackmar, 64 N.Y. 440, 445; Calabrese v. Allright N.Y. Parking, 93 A.D.2d 973; 2 N.Y. PJI 16 [1990 Supp]). Where, as here, defendant raises the affirmative defense of plaintiff's culpable conduct, the relative degree of culpability between plaintiff and defendant should be resolved with the issue of damages (see, Cox v Howell, 170 A.D.2d 1039; Jordan v. Britton, 128 A.D.2d 315, 321-322).
Supreme Court did not abuse its discretion, however, in denying defendant's motion to consolidate the matrimonial action and the assault action. A motion to consolidate is directed to the sound discretion of the court and the court is given wide latitude in the exercise thereof (Inspiration Enters. v. Inland Credit Corp., 54 A.D.2d 839, 840). The two actions involve many dissimilar issues which may confuse a jury; separate trials will enable the jury to focus on the factual issues presented in each action (see, Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480; Doll v. Castiglione, 86 A.D.2d 711).