HIBBERT v. AVWONTOM

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

Preston HIBBERT, respondent, v. Victor AVWONTOM, et al., appellants.

Decided: December 26, 2006

HOWARD MILLER, J.P., STEPHEN G. CRANE, ROBERT A. LIFSON, and MARK C. DILLON, JJ. Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy of counsel), for appellants. Donald Friedman, P.C., Brooklyn, N.Y. (Mitchell Gorkin of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Johnson, J.), dated April 27, 2006, which denied their motion for summary judgment dismissing the complaint based on the doctrines of res judicata and collateral estoppel.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendants made a prima facie showing of entitlement to judgment as a matter of law demonstrating that the instant litigation is barred by the doctrine of collateral estoppel based on a previous arbitration award which was adverse to the plaintiff (see Clemens v. Apple, 65 N.Y.2d 746, 748-749, 492 N.Y.S.2d 20, 481 N.E.2d 560;  Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 500-501, 478 N.Y.S.2d 823, 467 N.E.2d 487;  Goepel v. City of New York, 23 A.D.3d 344, 346, 804 N.Y.S.2d 95;  Carter v. Gospel Temple Church of God in Christ, 19 A.D.3d 353, 354-355, 796 N.Y.S.2d 417).   In opposition, the plaintiff failed to raise a triable issue of fact (see Martin v. Geico Direct Ins., 31 A.D.3d 505, 506, 818 N.Y.S.2d 265).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiff's remaining contention is without merit (see Matter of New York Cent. Mut. Fire Ins. Co. v. Reinhardt, 27 A.D.3d 751, 753, 813 N.Y.S.2d 158;  Hilowitz v. Hilowitz, 85 A.D.2d 621, 444 N.Y.S.2d 948).

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