Alpha Barry, Plaintiff, v. III THE TOWN OF CHESTER (2026)

The following papers were read on plaintiff Alpha Barry's motion for summary judgment on liability (Seq. 3):

Seq. # 3

Motion to Dismiss/Affidavits/Exhibits NYSCEF Doc # 44-51

Affirmation In Opposition/Memo of Law NYSCEF Doc # 54-57  ¹

Reply Affirmation/Memo of Law NYSCEF Doc # 28-35

BACKGROUND AND PROCEDURAL HISTORY

This case involves an incident where defendant John Reilly, the then-Town of Chester Highway Superintendent, discharged a firearm at plaintiff Alpha Barry, injuring plaintiff. Plaintiff commenced the action on November 3, 2025. Defendant Reilly answered on February 12, 2026. Defendant Town moved to dismiss in lieu of answer on February 16, 2026.

On June 11, 2026, plaintiff moved for summary judgment on liability against defendant Reilly, arguing that defendant Reilly's conviction in County Court for assault in the first degree, with depraved indifference conclusively established liability for negligence and gross negligence, and that defendant is now collaterally estopped from contesting liability.

On September 21, 2026, the Court granted the Town's motion to dismiss, dismissing all claims against the Town of Chester, which includes plaintiff's second cause of action in its entirety as well as any cross-claims between Reilly and the Town.

The only claims remaining are those between plaintiff and Reilly for negligence and gross negligence.

The facts are generally undisputed and are drawn from the pleadings, plaintiff's affirmation and the submitted transcripts from Reilly's criminal proceeding, wherein he was convicted of assault in the first degree amongst other charges. Defendant submitted only an attorney affirmation and memorandum of law.

On May 2, 2025, plaintiff was making deliveries through the Door Dash platform in the Town of Chester. Defendant Reilly, at the time, was the elected Highway Superintendent of the Town.

On the evening of May 2, 2025, at 9:00 PM, plaintiff was delivering food from Don Julio Dominican restaurant through Door Dash. The delivery was for a home on Valerie Drive in the Town of Chester. As plaintiff approached the street, his phone died, which was how he was navigating. He could not recall the address and drove up to 4 Valerie Drive, Reilly's residence. Plaintiff approached Reilly's door.

Plaintiff testified that he asked Reilly if the food was for him. Plaintiff also asked if he could charge his phone for five minutes. Reilly told him it was not and yelled at him to get off the property.

Plaintiff returned to his vehicle and began to leave. At that point, Reilly fired his Sig Sauer 9mm pistol at the car, striking the rear of his car, which hit plaintiff in the back.

Defendant Reilly was indicted for assault in the first agree, depraved indifference, and attempted murder in the second degree, along with lesser included charges and weapons charges.

After a multi-week criminal trial, Reilly was convicted by a jury on the assault in the first agree charge and the weapons charges. At the trial, Reilly asserted that he feared for his life and only fired at plaintiff as warning shots, disputing his criminal intent to commit the crime. Notably, he did not apparently raise a self-defense argument, rather contesting intent. This sentiment was mirrored in his attorney's statements at sentencing, as well as his own. His attorney summarized, "his defense could be most succinctly described as an intent based defense in this case, not a denying — denial of a factual responsibility" (NYSCEF Doc No. 63, pg. 10).

The County Court, in sentencing, noted that by the time plaintiff was struck with the bullet, plaintiff was already attempting to leave the scene. Reilly was sentenced to 17 years in state prison on the first degree assault charge.

DISCUSSION

Defendant Reilly maintains that the motion is premature and that there are issues of fact that prevent summary judgment, including deposition of witnesses and exploration of affirmative defenses such as self-defense/justification. He notes that not all elements of the tort claim were litigated in the criminal proceeding and that, in any event, he has affirmative defenses here that were not litigated. Plaintiff's motion is granted.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once a showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion for summary judgment, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see CPLR 3212 [b]; Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Seizeme v Levy, 208 AD3d 809, 810 [2d Dept 2022] (quoting Sapienza v Harrison, 191 AD3d 1028, 1029 [2d Dept 2021])). "To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 NY3d 312, 324-25 [2018]).

"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 liability regardless of whether the conviction resulted from a plea or a trial" (Maiello v Kirchner, 98 AD3d 481, 482 [2d Dept 2012] [internal quotation and citation omitted]).

"The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" (City of New York v Coll. Point Sports Ass'n, Inc., 61 AD3d 33, 42 [2d Dept 2009] [citing Buechel v Bain, 97 NY2d 295, 304 [2001]). If that burden is met, the burden swaps to the non-moving party to show they did not have a full and fair opportunity to contest the prior determination (id.).

As outlined above, defendant Reilly was convicted of First Degree Assault by a jury. Under Penal Law 120.10[3], first degree assault, based on depraved indifference, is established "Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person." A conviction for assault is sufficient to establish the lesser standard of negligence for the same conduct (see e.g. Blaich v Van Herwynen, 37 AD3d 387, 388 [2d Dept 2007]; Bazazian v Logatto, 299 AD2d 433, 434 [2d Dept 2002]; Wagman v Kandekore, 243 AD2d 628, 628 [2d Dept 1997]; Hughes v Farrey, 30 AD3d 244, 248 [1st Dept 2006]). Plaintiff established a prima facie case for summary judgment on his negligence claims and that defendant is collaterally estopped from denying liability.

Accordingly, the burden shifts to defendant to establish he did not have a fair opportunity to contest the issues at his criminal trial. Defendant failed.

Defendant Reilly was represented by counsel at his trial, vigorously contested the charges against him, and raised defenses to his intent (presumably to defeat the top charge of attempted murder). This defense was apparently successful, as he was convicted under a charge independent of intent and not of attempted murder. Defendant, however, knowingly, and with the assistance of counsel, did not raise any justification or self-defense argument. As defendant could have raised that argument in the criminal proceeding, but chose not to do so, he cannot do so now to defeat liability here, as he is collaterally estopped by virtue of his conviction (see e.g. Nachum v Ezagui, 83 AD3d 1017, 1019 [2d Dept 2011]; Russo v Dement, 61 Misc 3d 855, 864 [Sup Ct Suffolk Co 2018]). Moreover, defendant failed to submit any admissible evidence in opposition to the motion at all, relying only on an attorney affirmation and memorandum of law.

Defendant further failed to establish this motion was premature or that further discovery would be relevant to liability. Defendant "failed to demonstrate how discovery might lead to relevant evidence or that facts essential to opposing the motion were exclusively within the defendant's knowledge or control" (Yu Mei Liu v Weihong Liu, 163 AD3d 611, 612 [2d Dept 2018]; see Diaz v. Mai Jin Yang, 148 AD3d 672, 674 [2d Dept 2017]). Given the fact that defendant cannot raise defenses to liability, further evidence or testimony on liability defenses is not relevant (see Olsson v MacDonald, 16 AD3d 1017, 1017-18 [3d Dept 2005]).

With respect to any affirmative defenses relevant to comparative negligence or damages, those issues may be determined at the time of trial and will likely be subject to further discovery.Plaintiff's motion on liability is granted

Given the Court's determination, the parties remaining contentions, as to they do not compel a different outcome, are denied as moot/academic.

Accordingly it is,

ORDERED that the plaintiff's motion for summary judgment on liability against defendant Reilly is GRANTED.

The foregoing constitutes the Decision and Order of the Court.

Dated: October 28, 2026

E N T E R:

HON. E. Loren Williams, J.S.C.

FOOTNOTES

1.   Though defendant Town responded to the motion, since that briefing the Town was dismissed from the case. Its opposition, accordingly, was not considered on this motion, as it is now a non-party.

E. Loren Williams, J.