LEVINE v. TOLCHIN (1997)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered January 7, 1997, which, in an action for conscious pain and suffering and wrongful death arising out of an automobile accident, denied defendants' motion for summary judgment dismissing the complaint on the ground of collateral estoppel, unanimously affirmed, without costs.

The motion court correctly held that the hearing before the Department of Motor Vehicles pursuant to Vehicle and Traffic Law § 510, to determine whether the circumstances of this fatal accident warranted the suspension or revocation of defendant driver's license, did not provide plaintiff with a full and fair opportunity to litigate the issue of defendant's culpability for the accident.   The hearing was of a very short duration, consisting only of defendant's testimony, and neither the investigative police officers nor any other witnesses were called to testify.   Defendant was asked only approximately four questions relating to his operation of the vehicle on the night of the accident, none of which related to the road, traffic, and visibility conditions, the speed at which he was driving, the distance he had driven, the manner in which he steered, braked, or otherwise controlled the vehicle, or any other factors that may have caused him to lose control of the vehicle and crash.   Furthermore, while plaintiff was present at the hearing and represented by counsel, she was not a party to the administrative proceeding and her counsel was not given the opportunity to cross-examine defendant, call other witnesses, or present her perspective.   Nor did plaintiff have any direct stake in the outcome of a hearing, the purpose of which was simply to determine whether defendant's license should be suspended or revoked (see, Liss v. Trans Auto Sys., 68 N.Y.2d 15, 22, 505 N.Y.S.2d 831, 496 N.E.2d 851;  Rice v. Massalone, 160 A.D.2d 861, 554 N.Y.S.2d 294).

MEMORANDUM DECISION.