Merchants Mutual Insurance v. Arzillo

Gibbons, J. (dissenting).

The issue to be resolved is whether defendant should be precluded from litigating in this case the question of whether he “recklessly and wantonly damaged [the] building belonging to plaintiff’s subrogor when he intentionally caused a fire to start which caused great damage”. Specifically, we must decide whether defendant should be collaterally estopped from litigating this issue as framed in the complaint, because of a prior plea of guilty to arson in the fourth degree interposed by defendant, arising from a fire which occurred on June 18, 1978 in a building owned by plaintiff’s insured and subrogor. If estoppel is to be applied, then summary judgment as to liability should be granted in plaintiff’s favor. I conclude that, in the unique circumstances of this case, defendant’s conviction in the criminal case should not be given conclusive effect in a subsequent civil suit.

For collateral estoppel to attach to a discrete issue, that issue must be identical in the pending case and in the prior proceeding, it must have necessarily been decided in the *508prior proceeding, and the party to be estopped must have had a full and fair opportunity to litigate the issue in the prior proceeding (Gilberg v Barbieri, 53 NY2d 285, 291). In addition, the doctrine of collateral estoppel should never be applied mechanically. A case-by-case approach is necessary, keeping in mind the underlying purposes of the doctrine: to conserve the resources of courts and litigants, to promote the finality of judicial decisions, and to insure fairness to all parties (see Gilbert v Barbieri, supra; Read v Sacco, 49 AD2d 471, 473).

The burden is on the proponent of preclusion to prove “that the issue as to which preclusion is sought” is identical to the issue decided in the prior action and that that issue was necessarily decided in the prior case (Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 17-18). Conversely, the opponent of preclusion bears the burden of proving that he did not have a full and fair opportunity to litigate the issue in the prior proceeding (Capital Tel. Co. v Pattersonville Tel. Co., supra, p 18).

I submit that in the case at bar, plaintiff has not met its burden of showing that the issue of defendant’s responsibility for the fire was litigated in the prior criminal proceeding, that defendant has met his burden of showing that he did not have a full and fair opportunity to litigate that issue in the criminal case, and, finally, that it would be unfair to deprive defendant of the opportunity of now litigating this issue.

In support of its motion for summary judgment, plaintiff submitted the minutes of defendant’s plea before the Suffolk County Court, dated January 14, 1981, and the sentencing minutes, dated March 13, 1981. These minutes reveal that defendant owns the property adjacent to the location where the fire occurred. Defendant and the owner of that property had a long history of animosity. According to defendant, the source of their problems is that his neighbor has “a lot of violations” on his property, and defendant reported these violations to the town authorities. The fight between the two neighbors over the violations had been going on for about two years. Defendant asserts that, after the fire occurred, which he says was *509started by his neighbor, his neighbor “framed” him, “in order to keep [him] quiet”.

The plea minutes reveal that, despite his protestations of innocence and belief that he was being framed, defendant nonetheless decided to enter a guilty plea because he did not wish to chance the possibility of a jail term were he to be convicted after trial, and because the attorney’s fees for going to trial were prohibitive. The Assistant District Attorney made an offer of proof as to the substance of the case against defendant. He then represented to the court that his office was agreeing to the plea because, while it was his “feeling that * * * we would be able to prove, beyond a reasonable doubt, that Mr. Arzillo, in fact, was the moving force and the person who caused this fire to occur. However, as in any case, certainty is not something’s [sic] positive”.

In the face of defendant’s claims of innocence, the court, before taking the plea, painstakingly inquired of both defendant and his attorney to ascertain the motives for the plea and to insure that defendant was aware of what he was doing. It also informed defendant that if the probation report was favorable, he would be placed on probation. The court accepted the plea “on the basis that, if you did stand trial, you may well be found guilty of the higher charge [arson in the third degree] and you may well have to face greater punishment”. The court acknowledged that it was accepting the plea as a Serrano plea (People v Serrano, 15 NY2d 304). Later, at sentencing, the court, as a condition of probation, told defendant to stay away from his neighbor. The court continued: “You’ve had problems with this man, or his company, or whatever it is, over the years, and it’s caused this problem. You say he started the fire. He says you started the fire. I don’t know who started the fire, sir, and we never did litigate it here in court, but if there’s [sic] any more problems * * * and if the violation of probation comes in * * * you can be sentenced” (emphasis supplied).

Up until 1973, the rule in New York had been that collateral estoppel would not be applied so as to give a conviction in a criminal case conclusive effect in a subsequent civil action. While proof of the criminal conviction *510was allowed as prima facie evidence of the facts involved, such facts were not considered irrebuttably established (see Schindler v Royal Ins. Co., 258 NY 310). In the case of S. T. Grand, Inc. v City of New York (32 NY2d 300), the Court of Appeals overruled past precedent and held that, in a civil case where a litigant had previously been convicted of a crime after a trial, collateral estoppel might, in appropriate circumstances, apply to preclude further litigation of issues necessarily decided in the criminal proceeding.

A bare nine months after handing down S. T. Grand (supra), the Court of Appeals referred to its holding in that case and noted: “emphasis, of course, was placed on the procedural safeguards accorded defendant and the high degree of proof required in order to convict after trial. We did not hold in that case, nor do we in this one, that a conviction after a plea of guilty can serve as a bar to subsequent civil litigation on the theory that the issues presented in the civil trial were, or could have been, litigated in the criminal proceeding” (Vavolizza v Krieger, 33 NY2d 351, 356). Following this word of caution, at least one court held that a conviction predicated on a plea of guilty could not be given conclusive effect in a later civil suit (Matter of Bach, 81 Misc 2d 479, 483-484). Nonetheless, in several cases, without any discussion relating to the difference between a criminal conviction upon a jury verdict and a conviction upon a plea of guilty, this court has applied collateral estoppel where there had been a prior guilty plea (Brennan v Mead, 81 AD2d 821, affd 54 NY2d 811; Alexander v City of Peekskill, 80 AD2d 626; Armchair Races v Caso, 51 AD2d 565; see, also, Matter of Cumberland Pharmacy v Blum, 69 AD2d 903). The Court of Appeals, while not discussing the issue, has apparently now held that the doctrine of collateral estoppel might be applicable in such a context (Brennan v Mead, supra).

The question before us, then, is whether the circumstances warrant applying collateral estoppel here. Initially, I would note that it is unnecessary in this case for us to make a general statement as to the efficacy of applying collateral estoppel where there has been a prior Serrano-Alford plea (People v Serrano, 15 NY2d 304, supra; North Carolina v Alford, 400 US 25). There is much to be said for *511the view that collateral estoppel should never attach where based solely on a Serrano-Alford plea, since in such a situation not only has there been no trial verdict of guilty, but the defendant, in pleading guilty, has not admitted the acts constituting the crime. The Court of Appeals has never ruled on the question, although this court, in Matter of Cumberland Pharmacy v Blum (69 AD2d 903, supra), while holding that a conviction provided sufficient evidence to warrant a finding that the defendant pharmacy had engaged in an unacceptable practice, noted in dicta that even though the conviction was based on a Serrano-Alford plea, it was “conclusive proof of the underlying facts”. Whatever the validity of this statement in Matter of Cumberland Pharmacy (supra), the point which must always be emphasized is that, in deciding the applicability of collateral estoppel, a case-by-case analysis is necessary, with attention being paid to the “ ‘realities of the [prior] litigation’ ” (People v Plevy, 52 NY2d 58, 65, quoting from Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 72; see Haring v Prosise, 462 US_, 103 S Ct 2368; Gilberg v Barbieri, supra, p 292; Kossover v Trattler, 82 AD2d 610, 622-624 [concurring opn, Gibbons, J.]). My colleagues in the majority ignore this very basic and important principle when they state that “those who knowingly and voluntarily plead guilty to substantial criminal charges * * * should not expect the courts to look behind the convictions based on such pleas in order to relieve them from adverse civil consequences which may follow”. Collateral estoppel should not be blindly applied to all cases where there have been previous guilty pleas, whether of the Serrano-Alford variety or otherwise. In this particular case, there are several factors present which demonstrate the impropriety of applying collateral estoppel.

Firstly, as declared by the court which took defendant’s guilty plea and sentenced him to a term of probation, the question of who started the fire was not litigated in the prior criminal proceeding. This is not a case where the criminal defendant, as in Matter of Cumberland Pharmacy (supra), simply refrained from admitting the facts constituting his guilt. Instead, defendant repeatedly and emphatically asserted that he was being framed, that his *512neighbor started the fire, and that he was innocent. In the face of these protestations, it cannot be said that the factual question of who started the fire was actually litigated and determined in the criminal action. Accordingly, defendant should not, despite his plea of guilty, be estopped from litigating this issue in the present suit (Haring v Prosise, supra; Dier v City of New York, 79 AD2d 596).

Secondly, the circumstances of the plea and sentence warrant a conclusion that defendant did not have a full and fair opportunity to litigate the question of whether he was responsible for the fire. Whether defendant had a full and fair opportunity to litigate for collateral estoppel purposes is not determined affirmatively just because defendant had an opportunity to proceed to trial on the issue (People v Plevy, 52 NY2d 58, 65, supra). Nor can it be resolved “by a finding that the party against whom the determination is asserted was accorded due process in the prior proceeding” (Gilberg v Barbieri, 53 NY2d 285, 292, supra). Contrary to the majority’s view that “[a]s long as the guilty plea stands, the defendant is guilty and cannot be heard to say otherwise”, the Court of Appeals has declared that “[t]he point of the inquiry, of course, is not to decide whether the prior determination should be vacated but to decide whether it should be given conclusive effect beyond the case in which it was made” (Gilberg v Barbieri, supra, p 292).

The realities of the prior judgment, upon which the applicability of collateral estoppel turns, include the fact that defendant was obviously afraid that if he went to trial, he ran the risk of being convicted of a more serious charge and of being sentenced to prison. Thus, the very seriousness of the criminal case had the effect, not of providing an incentive to litigate his innocence fully and completely, but of discouraging him from presenting his case to a jury. In similar circumstances, the Court of Appeals has held that collateral estoppel should not be applied (People v Plevy, supra, pp 65-66).

The realities of defendant’s guilty plea also involve two of the facts relating to the full and fair opportunity to litigate noted in Schwartz v Public Administrator of County of Bronx (supra, p 72). The extent of the prior *513litigation was minimal, particularly in light of defendant’s assertions of innocence. There really is nothing in the record from which we could conclude that defendant is, indeed, the one who started the fire. Additionally, the agreement reached by the District Attorney’s office, the court, and defendant, with respect to his plea, is analogous to a compromise verdict, which, as stated by the Court of Appeals in Schwartz (supra), tends to support the conclusion that the prior judgment should not be given conclusive effect in a later, collateral matter. For the District Attorney’s part, he agreed to accept the Serrano-Alford plea to a reduced charge, because conviction after trial was uncertain. For the court’s part, it promised a sentence of probation in return for the plea. For defendant’s part, he was willing to forego litigation of the issue of his guilt or innocence provided he received a promise that he would not go to jail and provided that he was not forced to recant from his position that he was innocent.

The majority states that “[t]he record of the criminal proceeding shows clearly that the defendant was aware of what he was doing when he knowingly and voluntarily entered such plea and he must be held bound both criminally and civilly by his plea”. My colleagues also claim that a person entering a guilty plea “must accept the consequences of his action”. The problem with these assertions is that they beg the essential question, which is whether the plea in this case should have, as a consequence, collateral estoppel effect in a subsequent civil suit. It appears as though the majority is of the view that when defendant pleaded guilty, he knowingly and voluntarily accepted, as á consequence of his plea, that he would be subject to civil liability for the fire, and would not have a chance to contest, this issue in a civil forum. Nothing could be further from the truth. The record clearly reveals that defendant did not waive any rights except those pertaining directly to the criminal charge which was pending against him. Over and over again, defendant emphasized that, while he was innocent, he was only pleading guilty in order to dispose of the criminal matter. There is nothing in the record which indicates that defendant, in pleading guilty, knowingly and voluntarily gave up his right to claim in a civil action that he was innocent.

*514Finally, the realities of the situation include the fact that, not only did defendant protest that he was being framed and that he was innocent, but the court specifically stated that the question of who started the fire was not being decided. It is true that a Judge need not, before accepting a guilty plea, inform the defendant of all possible future consequences, such as the possibility of the plea’s effect in a later, collateral proceeding (People v Wilson, 81 Misc 2d 739). However, the court should not do anything affirmatively to mislead the defendant. Here, the court’s statement that it had not been determined who started the fire could easily have been taken as confirmation of defendant’s understanding that his guilt had only been established for penal purposes, but that, in every other respect, the issue was an open question. If, instead, defendant had been told at sentencing that, for all intents and purposes, in all contexts, penal and otherwise, a judgment of conviction meant that he was considered the one who was responsible for the fire, then he may well have sought to withdraw his guilty plea. While it was not necessary for the court to so inform defendant, the statement that was made had a contrary meaning and naturally would tend to lead defendant to a different conclusion.

As earlier stated, the policy considerations underlying the doctrine of collateral estoppel must be considered in deciding its applicability in a particular case. Specifically, I submit that it would be unfair to impose collateral estoppel on defendant. Much of what has already been said bears on the matter of fairness. That defendant has always asserted his innocence and that we have no record of testimony from which we can confidently and reliably conclude that, nonetheless, defendant was responsible for the fire, cuts to the heart of the doctrine of collateral estoppel. A judicial determination is given collateral estoppel effect because, among other things, we are reasonably certain of its correctness. Certainty is not present here. All we really know is that there was enmity between the defendant and his neighbor and that there was a fire. The circumstances indicate that defendant’s plea was very possibly entered “merely because he [did] not want to risk a conviction for a higher offense or wishe[d] to spare his family *515or himself the ordeal of a trial, although he * * * [was] firmly convinced of his own innocence” (People v Grant, 45 NY2d 366, 379). Additionally, the court itself, at sentencing, represented to defendant that, as a factual matter, the question of who started the fire had not been litigated or determined. In consideration of all these factors, it would be unfair to hold that, in opting not to oppose the criminal charge, defendant did, indeed, litigate the matter of responsibility for the fire and that he should now suffer a substantial financial judgment without being afforded the opportunity of contesting, his liability.

Lazer, J. P., and Boyers, J., concur with Niehoff, J.; Gibbons, J., dissents and votes to affirm, with an opinion.

Order of the Supreme Court, Nassau County, dated January 21, 1982, reversed, on the law, with costs, and plaintiff’s motion granted, to the extent that it is awarded summary judgment on the issue of liability, and matter remitted to the Supreme Court, Nassau County, for further proceedings consistent with the opinion herewith.