Opinion
216382007.
Decided December 14, 2009.
Grunwald Seman, P.C., by Milton Grunwald, Esq., Garden City, NY, Attorney for Plaintiff.
Davis Bernheim, by Richard H. Coleman, Esq., Bellmore, NY, Attorney for Defendant.
Plaintiff commenced this action to recover damages for injuries she sustained on September 15, 2006. On that date, defendant was arrested and charged with assault in the third degree (Penal Law § 120.00). On April 2, 2007, the charge was reduced and defendant pleaded guilty to the amended charge of attempted assault in the third degree (Penal Law §§ 110.00 120.00). At his allocution, defendant stated that he, "with intent, attempt[ed] to cause physical injury to [plaintiff] by attempting to punch her in the nose."
Thereafter, plaintiff filed the instant suit alleging four causes of action, to wit: assault, negligence, intentional infliction of emotional distress, and punitive damages. On this motion for summary judgment, plaintiff argues that, by virtue of defendant's above-mentioned criminal conviction, defendant is estopped from contesting the issue of liability in the present action.
"Collateral estoppel is based upon the notion that a party should not be permitted to relitigate issues which have previously been resolved against the party in a prior proceeding in which that party had a fair opportunity to fully litigate the point" ( City of New York v College Point Sports Assn., Inc. , 61 AD3d 33 ; see Pav-Co Asphalt, Inc. v County of Suffolk , 66 AD3d 660 ; County of Suffolk v All County Paving Corp. , 66 AD3d 630 ). Issues decided in a criminal proceeding will have a preclusive effect in a subsequent civil action if: (1) the identical issue was necessarily decided in the criminal action and is decisive of the present action; and (2) the party against whom preclusion is being sought had a full and fair opportunity to contest the prior determination ( see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Pav-Co Asphalt, Inc., 66 AD3d at 660), whether the conviction resulted from a plea or a trial ( City of New York, 61 AD3d at 42; Blaich v Van Herwynen , 37 AD3d 387 ).
As a preliminary matter, plaintiff's fourth cause of action for punitive damages must be dismissed, as it is well-settled law in New York that a demand for punitive damages may not constitute an independent cause of action ( Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616; Aronis v TLC Vision Ctrs, Inc. , 49 AD3d 576 ; Randi A.J. v Long Is. Surgi-Ctr. , 46 AD3d 74 ).
As to the remaining causes of action, plaintiff failed to meet her prima facie burden of establishing that the identical issues were necessarily determined in the prior criminal action and are decisive in the instant action. As discussed above, defendant pleaded guilty to attempted assault in the third degree. As such, the issue determined in the criminal proceeding was that defendant intended to attempt to cause physical injury to plaintiff. Plaintiff's first cause of action (which is improperly characterized as an "assault" claim, when it should be one for battery) alleges that defendant "maliciously and wantonly assaulted the Plaintiff by shoving, punching and striking Plaintiff with the intention of causing bodily injury," and plaintiff's second cause of action for negligence alleges that defendant "negligently" did same. These two causes of action require a showing of physical contact by defendant. Consequently, plaintiff may not rely on collateral estoppel, since defendant's guilty plea of attempted assault does not conclusively establish that defendant actually caused such physical injury to plaintiff ( see Hughes v Farrey , 30 AD3d 244 [defendant pleaded guilty to recklessly stabbing plaintiff; as such, plaintiff could not invoke the doctrine of collateral estoppel in her suit for civil battery since same requires a showing of intent]; Zannelli v Walker , 27 AD3d 460 [proximate cause is not an element of reckless endangerment and, as such, plaintiff could not rely on collateral estoppel in her civil suit]). Plaintiff's reliance on Colby v Crocitto ( 207 AD2d 764) is inapposite, as the court held in Colby that a person who has been convicted of assault in the third degree — not attempted assault in the third degree, as is the case here — may not relitigate the issue of liability for civil assault and battery.
Moreover, plaintiff's cause of action for intentional infliction of emotional distress, which alleges, inter alia, that "after the Defendant was arrested for his Assault he continued to threaten the Plaintiff and engaged in a deliberate and malicious campaign of harassment," alleges an entirely new set of facts that appear nowhere in plaintiff's proffer of evidence from the prior criminal proceeding. Therefore, neither can plaintiff rely upon collateral estoppel for this claim. In light of plaintiff's failure to sustain her burden, defendant's opposition need not be reached ( see County of Suffolk, 66 AD3d at 630).
Accordingly, plaintiff's motion for summary judgment is denied.