Opinion
2012-11-14
Doreen HEADLEY, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Paul A. Hayt of counsel), for appellant. Wallace D. Gossett, New York, N.Y. (Armienti, DeBellis, Guglielmo & Rhoden, LLP [Vanessa M. Corchia], of counsel), for respondents.
Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Paul A. Hayt of counsel), for appellant. Wallace D. Gossett, New York, N.Y. (Armienti, DeBellis, Guglielmo & Rhoden, LLP [Vanessa M. Corchia], of counsel), for respondents.
, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated April 7, 2011, as denied her cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's cross motion for summary judgment on the issue of liability is granted.
The plaintiff was a passenger on a bus operated by the defendant Vincent P. Washington and owned by the defendant New York City Transit Authority. The plaintiff testified at her deposition that she saw Washington start to eat a piece of candy, and begin to choke immediately thereafter. Washington subsequently lost control of the bus and collided with another bus which was stopped at a bus stop, and then with a light pole on the sidewalk. The plaintiff allegedly sustained injuries as a result, and thereafter commenced this action against the defendants. In the order appealed from, the Supreme Court, inter alia, denied the plaintiff's cross motion for summary judgment on the issue of liability.
“The doctrine of collateral estoppel ... precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487;see Lester v. New York State Off. of Parks Recreation, & Historic Preserv., 87 A.D.3d 561, 563, 928 N.Y.S.2d 325;Mose v. Sangiovanni, 84 A.D.3d 1041, 922 N.Y.S.2d 811). Collateral estoppel effect will be given only to matters actually litigated and determined in a prior action or proceeding ( see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63;Lester v. New York State Off. of Parks Recreation, & Historic Preserv., 87 A.D.3d at 563, 928 N.Y.S.2d 325;Simpson v. Alter, 78 A.D.3d 813, 814, 911 N.Y.S.2d 405). It must be shown that the identical issue was decided in the prior action or proceeding, is decisive in the present action, and that the party to be precluded from relitigating the issue had a full and fair opportunity to contest it ( see Kaufman v. Eli Lilly & Co., 65 N.Y.2d at 455, 492 N.Y.S.2d 584, 482 N.E.2d 63;Lester v. New York State Off. of Parks Recreation, & Historic Preserv., 87 A.D.3d at 563, 928 N.Y.S.2d 325;Nachum v. Ezagui, 83 A.D.3d 1017, 922 N.Y.S.2d 459).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating, pursuant to the doctrine of collateral estoppel, that the defendants were precluded from litigating the issue of their liability with respect to the subject accident ( see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584, 482 N.E.2d 63;Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487;JPMorgan Chase Bank v. Ezagui, 90 A.D.3d 714, 934 N.Y.S.2d 454). Specifically, the plaintiff submitted an order dated May 14, 2010, from another action commenced by a fellow bus passenger, and involving the same accident, wherein that plaintiff's motion for summary judgment on the issue of liability against the defendants was granted.
In opposition, the defendants failed to raise a triable issue of fact. The defendants relied upon, inter alia, an order datedJanuary 29, 2010, from a separate action commenced by yet another fellow bus passenger, and also involving the same accident, wherein that plaintiff's motion for summary judgment on the issue of liability against the defendants was denied. However, in an order dated July 9, 2012, the Supreme Court, upon renewal, granted that plaintiff's motion for summary judgment on the issue of liability against the defendants. This Court may, in general, take judicial notice of matters of public record ( see e.g. Hunter v. New York, Ontario & W. R.R. Co., 116 N.Y. 615, 621–622, 23 N.E. 9;Matter of Winona Pi., 86 A.D.3d 542, 543, 926 N.Y.S.2d 324;Matter of Santiago v. New York State Div. of Parole, 78 A.D.3d 953, 911 N.Y.S.2d 436;Matter of Fells v. Hansell, 77 A.D.3d 941, 942, 910 N.Y.S.2d 485;High v. City of White Plains, 227 A.D.2d 525, 658 N.Y.S.2d 882;Matter of Chasalow v. Board of Assessors of County of Nassau, 176 A.D.2d 800, 804, 575 N.Y.S.2d 129). Since the order dated July 9, 2012, in effect, vacated the order dated January 29, 2010, the defendants have not shown the existence of conflicting orders on the issue of their liability to the plaintiff herein so as to avoid the application of collateral estoppel ( see Creinis v. Hanover Ins. Co., 59 A.D.3d 371, 376, 872 N.Y.S.2d 544;cf. Gaston v. American Tr. Ins. Co., 11 N.Y.3d 866, 873 N.Y.S.2d 250, 901 N.E.2d 743).
Accordingly, the Supreme Court should have granted the plaintiff's cross motion for summary judgment on the issue of liability.