Plaintiff Injured in Fall off Porch Denied Summary Judgment Against Defendant Convicted of Harassment

Case: Maiello, Jr. v. Kirchner

Court: Supreme Court, Appellate Division, Second Department

Date: Aug. 1, 2012.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

**************************************************

RELATED POSTS:

PLAINTIFF ASSAULTED BY MAN WHO GRABBED DEFENDANT-CONTRACTOR'S POWER SAW; CONTRACTOR DENIED SUMMARY JUDGMENT--JURY TO SAY IF ASSAULT "FORESEEABLE"

VICTIM CAN'T SUE FARM FOR SEXUAL ASSAULT BY HORSEBACK RIDING INSTRUCTOR; SUMMARY JUDGMENT GRANTED TO DEFENSE

**************************************************

Facts: Interesting accident case here. Plaintiff was injured when he fell off a porch -- or maybe defendant pushed him. Defendant faced criminal charges, and entered a "conditional" plea of guilty to 3rd degree assault. Defendant was placed on supervised probation which, if he successfully completed, would allow him to plead guilty to harassment as a "violation" not considered a criminal conviction, but rather like a traffic ticket.

Plaintiff brought a motion for summary judgment, on the theory, known as collateral estoppel, that defendant's guilty plea made him automatically liable for plaintiff's injuries.

The Court denied plaintiff's summary judgment motion for several technical reasons.

First, defendant's guilty plea to assault was not final, as he was not sentenced and would not be sentenced until after he completed (or failed to complete) supervised probation.

Second, while defendant's guilty plea to harassment satisfied plaintiff's initial burden, it was not considered binding for collateral estoppel purposes. According to the Court, the defendant didn't have a "full and fair"opportunity to contest the issue of liability.

This is a somewhat bizarre finding. The Court seems to say that since defendant's plea was to a noncriminal charge he didn't really bother to contest it which, to me, seems rather different than not having an opportunity to contest the criminal case against him.

Third, there were issues of fact as to whether plaintiff contributed to his own fall off the porch. The Court is vague on this aspect of the case, but one assumes that plaintiff and defendant were fighting.

Held: Plaintiff's motion for summary judgment denied.

Categories