LILI v. HENRY

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Supreme Court, Appellate Division, Second Department, New York.

LILI B. (Anonymous), etc., et al., Respondents, v. HENRY F. (Anonymous), Appellant.

Decided: January 27, 1997

Before MANGANO, P.J., and O'BRIEN, PIZZUTO, GOLDSTEIN and LUCIANO, JJ. Harold, Salant, Strassfield & Spielberg, White Plains, (Leonard Spielberg, of counsel), for appellant. Cerrato Sweeney Cohn Stahl & Vaccaro, White Plains, (Wayne H. Spector, of counsel), for respondents.

In an action, inter alia, to recover damages for battery, the defendant appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered January 12, 1996, which granted the plaintiffs' motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

In December 1994, the defendant pleaded guilty to sexual abuse in the second degree by admitting that he had fondled the infant plaintiff's vagina during an incident at a public pool.   Based on this plea, the plaintiffs commenced this action, inter alia, to recover damages for battery.   The plaintiffs subsequently moved for summary judgment on the issue of liability on the ground of collateral estoppel, which motion was granted.   We now affirm.

 “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” (McDonald v. McDonald, 193 A.D.2d 590, 597 N.Y.S.2d 159).   Whether the conviction is by plea or after trial, all that is required to give effect to the collateral estoppel bar is that there is an identity of issues and that the defendant had a full and fair opportunity to litigate the issue in the criminal action (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634;  McDonald v. McDonald, supra, at 591, 597 N.Y.S.2d 159;  Grayes v. DiStasio, 166 A.D.2d 261, 262-263, 560 N.Y.S.2d 636).   These conditions are satisfied in this case.   Furthermore, this is not a case where the prior criminal proceeding involved a trivial matter (cf., Gilberg v. Barbieri, 53 N.Y.2d 285, 292-293, 441 N.Y.S.2d 49, 423 N.E.2d 807).   Nor are there any other circumstances in this case which would render the collateral estoppel bar inapplicable, the defendant's protestations of innocence notwithstanding (cf., Sullivan v. Breese, 160 A.D.2d 997, 554 N.Y.S.2d 937).

MEMORANDUM BY THE COURT.

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