Opinion
2020–00133, 2020–01574 Index No. 713998/17
01-11-2023
AYA R. (Anonymous), respondent, v. Refat ELBAZ, appellant.
Siegle & Sims LLP, New York, NY (Jonathan D. Sims of counsel), for appellant. Law Office of Daniel R. Olivieri, P.C., Jericho, NY, for respondent.
Siegle & Sims LLP, New York, NY (Jonathan D. Sims of counsel), for appellant.
Law Office of Daniel R. Olivieri, P.C., Jericho, NY, for respondent.
MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for battery, the defendant appeals from (1) an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered December 23, 2019, and (2) an order the same court entered January 29, 2020. The order entered December 23, 2019, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging battery. The order entered January 29, 2020, insofar as appealed from, upon reargument, adhered to that prior determination in the order entered December 23, 2019.
ORDERED that the appeal from the order entered December 23, 2019, is dismissed, as the portion of the order appealed from was superseded by so much of the order entered January 29, 2020, as was made upon reargument; and it is further,
ORDERED that the order entered January 29, 2020, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action, inter alia, to recover damages for battery, arising out of the defendant's sexual abuse of the plaintiff. The plaintiff moved, among other things, for summary judgment on the issue of liability on the cause of action alleging battery, relying, inter alia, upon a transcript of a related criminal prosecution, wherein the defendant pleaded guilty to rape in the third degree ( Penal Law § 130.25 ). In an order entered December 23, 2019, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging battery. The defendant thereafter moved for leave to reargue his opposition to that branch of the plaintiff's motion. In an order entered January 29, 2020, the court, inter alia, granted the defendant leave to reargue, and, upon reargument, adhered to that prior determination in the order entered December 23, 2019. The defendant appeals.
" ‘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 relitigating the issue of his [or her] liability’ " ( Kuznitz v. Funk, 187 A.D.3d 1006, 1006–1007, 133 N.Y.S.3d 46, quoting Maiello v. Kirchner, 98 A.D.3d 481, 482, 949 N.Y.S.2d 200 ). "The doctrine applies whether the conviction resulted from a plea or a trial" ( Morrow v. Gallagher, 113 A.D.3d 827, 828, 979 N.Y.S.2d 395 ).
Here, the evidence submitted by the plaintiff in support of her motion, which included the transcript of the related criminal action, was sufficient to satisfy her prima facie burden of demonstrating her entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging battery (see id. at 828, 979 N.Y.S.2d 395 ; Lili B. v. Henry F., 235 A.D.2d 512, 512, 653 N.Y.S.2d 34 ). Contrary to the defendant's contention, the doctrine of collateral estoppel bars him from litigating the issue of whether his offensive contact with the plaintiff was without consent, as lack of consent is an element of rape in the third degree ( Penal Law §§ 130.05[1], [3][a] ; 130.25; see Lili B. v. Henry F., 235 A.D.2d at 512, 653 N.Y.S.2d 34 ; but see Stavroula S. v. Guerriera, 193 A.D.2d 796, 797, 598 N.Y.S.2d 300 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur.