I respectfully dissent. The majority concedes that "the facts and circumstances of this case can be fit into the current boundaries of the general principles of collateral estoppel applicable to administrative determinations”. With this I agree. The facts of defendant’s misconduct were necessarily determined in the prior disciplinary proceeding by the State Board for Professional Medical Conduct (hereinafter the Board) and the Commissioner of Education (hereinafter the Commissioner). The Board’s Hearing Committee explicitly rejected defendant’s testimony and accepted plaintiff’s testimony, finding "beyond a shadow of a doubt” that defendant "harmed, abused and intimidated” plaintiff. The findings were that plaintiff had a series of appointments with defendant in which he was treating her for ear problems. On April 9, 1984 she had an afternoon appointment with defendant. He examined her ears, nose and throat and asked her to return at 6:00 p.m. to discuss her allergies, explaining *223that he was too busy to take the time that afternoon. When she returned to his office at 6:00 P.M., no one else was there. He escorted her to an examining room, sat down on a couch with her and made explicit physical and verbal sexual advances, including touching her breasts and upper thigh, which she initially was afraid to resist.
The foregoing facts were actually placed in issue in what unquestionably was a quasi-judicial hearing during which defendant had a full and fair opportunity to litigate under appropriate procedural safeguards and a preponderance of evidence standard of proof (see, Education Law § 6510-a [1]; Public Health Law §230 [10] [f]). Accordingly, there is no reason why the administrative findings of the Board and the Commissioner in the final determination of defendant’s disciplinary proceeding should not be given collateral estoppel effect (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277, cert denied — US —, 109 S Ct 785).
The majority nevertheless rejects giving preclusive effect to the findings of the Board and the Commissioner on the ground of fundamental fairness. Three factors are cited by the majority in concluding that it would be unfair to preclude defendant from relitigating the facts of his professional misconduct. First, it is pointed out that estopping defendant from relitigating the facts of his misconduct would deprive him of a jury determination of the factual issues. Second, this deprivation is made more unfair where, as here, the prior litigation was before an administrative body instead of a court sitting without a jury, because there is no right to pretrial discovery in an administrative proceeding and the scope of judicial appellate review is narrower. Finally, it is argued that the unfairness is further aggravated by the fact that defendant did not initiate the prior administrative proceeding, and thus had no free choice but to litigate in the administrative forum.
Since there is no dispute whatsoever that the disciplinary proceedings before the Board were quasi-judicial, and that the factual issues in the present suit and in the administrative hearing are identical, the reasons stated for denying plaintiff’s motion all relate to the second prong of the test for applying collateral estoppel, i.e., whether the party against whom estoppel is sought had "a full and fair opportunity to contest the decision now said to be controlling” (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71; see, Gilberg v Barbieri, 53 NY2d 285, 292). The Court of Appeals has repeatedly abjured a formalistic approach to answering this question, emphasiz*224ing that it involves a "practical inquiry into 'the realities of litigation’ ” (Gilberg v Barbieri, supra, at 292; see, Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147,153).
In citing what it means by "practical realities”, the Court of Appeals has mentioned such factors as the size and importance of the claim, the nature of the prior forum, the use of initiative, competence of counsel, the availability of new evidence and the foreseeability of future litigation (Ryan v New York Tel. Co., 62 NY2d 494, 501; Gilberg v Barbieri, supra, at 292; Schwartz v Public Adm’r of County of Bronx, supra, at 72). In general, the factors all relate to the fullness of the opportunity to litigate the issues in the prior forum of the party proposed to be bound by the prior adjudication, and that party’s practical incentive to fully litigate therein. The Restatement (Second) of Judgments, from which it can fairly be said the modern New York res judicata doctrine in all of its aspects has sprung (see, e.g., Matter of Reilly v Reid, 45 NY2d 24, 29-30), takes exactly the same approach in dealing with the application of collateral estoppel to prior administrative determinations: "The first consideration is procedural. The essential issue is a comparison of the quality and intensiveness of the opportunity to litigate, and the incentive to litigate, in the original litigation as compared to the opportunity and incentive in the second litigation. If the prior opportunity and incentive to litigate the claim or issue in question were substantially the same as would have existed had the matter been adjudicated in the second forum, the procedural prerequisites exist for normal application of the rules of res judicata. The comparison of procedures should focus on the practical aspects of the procedures involved and not simply on matters of form. For example, proof-taking in an administrative or arbitration tribunal may be relatively informal but may nevertheless permit the parties to present substantially the same evidence that might be adduced through the more formal procedures characteristic of courts” (Restatement [Second] of Judgments, ch 6, Introductory Note, at 265 [1982] [emphasis supplied]). Thus, based upon these underlying criteria, it was held in both Staatsburg Water Co. v Staatsburg Fire Dist. (supra, at 154-155) and Gilberg v Barbieri (supra, at 292-293), the cases principally relied upon by the majority, that collateral estoppel should not be applied because of the absence of practical incentives of the defendants to have fully litigated the issues in the prior forums.
But Staatsburg and Gilberg (supra) cannot logically stand *225for the proposition that the absence of the right to a jury trial, restrictions on pretrial discovery, the limited scope of judicial review in administrative proceedings and the fact that the party to be bound did not initiate the proceeding per se disqualify an administrative determination from being given preclusive effect. To do so would severely undercut any application of collateral estoppel as to either prior administrative or arbitration determinations. Moreover, all but one of the cited procedural differences between administrative and judicial proceedings (i.e., absence of a jury, limited discovery and scope of appellate review) clearly existed in the entire line of cases where preclusive effect had been given to a prior administrative determination in a subsequent action at law (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, supra; Brugman v City of New York, 64 NY2d 1011; Ryan v New York Tel. Co., 62 NY2d 494, supra). Nor should the absence of free choice of defendant to participate in the disciplinary proceeding be decisive (see, Restatement [Second] of Judgments §29, comment d [1982]). Making these procedural differences controlling is, in effect, to employ the kind of formalistic approach to collateral estoppel that the Court of Appeals has repeatedly rejected. Of course, there may be instances when other differences in a given case between the administrative body and a court militate against the fairness of applying collateral estoppel to a prior administrative determination, such as whether the agency was acting in a truly objective adjudicatory capacity or whether it was interjecting policy considerations subject to change (see, Allied Chem. v Niagara Mohawk Power Corp., supra, at 277). Suffice it to say that no such other differences have been cited to us here.
Examining, then, the prior proceeding by the practical realities of defendant’s full and fair opportunity-in the disciplinary proceeding to contest the issue of his misconduct, the record of that proceeding which we have already reviewed certainly establishes that he vigorously contested the charges, through introducing evidence in his defense and cross-examination of opposing witnesses, and fully participated and was represented by competent counsel at all stages. If anything, his incentive to litigate the issues was greater in the prior proceeding, in which his license to practice medicine was at stake, than it is in the instant malpractice case. Moreover, the present suit was not only foreseeable when the disciplinary charges against defendant were pending, it was actually known to exist. Indeed, in the disciplinary proceeding, defen*226dant attacked plaintiff’s credibility on the basis of her having already brought this action (see, Matter of Goomar v Ambach, 136 AD2d 774, 776, appeal dismissed 72 NY2d 908, lv denied 73 NY2d 701). Nor has defendant suggested that any new evidence in his defense exists which was not available to him at the prior proceeding. In short, defendant has not met his burden of showing that he lacked a full and fair opportunity to contest the facts of his misconduct toward plaintiff, and the findings of the Board and the Commissioner should, therefore, be given preclusive effect.
The findings of the Board and the Commissioner established that a doctor-patient relationship existed between plaintiff and defendant, that plaintiff was present at defendant’s office for medical treatment and that defendant’s sexual abuse of plaintiff occurred while he purportedly was giving her treatment and medical advice. In essence, defendant was fully and finally adjudicated by the Board and the Commissioner as having harmed plaintiff emotionally by exploiting the doctor-patient relationship and the trust and confidence one has in one’s physician, all while actually in the course of treating her physical ailment. Defendant’s sexual misconduct toward plaintiff was only occasioned because of and was inextricably involved with his professional treatment of her and, thus, can properly be considered malpractice (see, Bleiler v Bodnar, 65 NY2d 65, 72; Ross v Community Gen. Hosp., — AD2d —, — [May 4, 1989]).
Sexual exploitation of a patient during or even after a course of treatment, the harmful effects of which are by now well recognized and unanimously condemned within the health professions, is a clear violation of the duty of care the physician owes a patient and, thus, constitutes malpractice even if the sexual conduct was not itself done under the guise of treatment (Noto v St. Vincent’s Hosp. & Med. Center, 142 Misc 2d 292, 296; Hoopes v Hammargren, 102 Nev 425, 725 P2d 238; Wall v Noble, 705 SW2d 727 [Tex]; Adams, Sex with Patients: Is it Malpractice?, 23 Trial 58 [June 1987]; see also, Greenberg v McCabe, 453 F Supp 765, affd 594 F2d 854, cert denied 444 US 840; cf., Roy v Hartogs, 85 Misc 2d 891, 892; Atienza v Taub, 194 Cal App 3d 388, 239 Cal Rptr 454). Indeed, in the same disciplinary hearing, defendant’s similar sexual abuse of three other patients was found to have constituted acts of professional incompetence, i.e., malpractice. Even without such a finding by the Board’s professional panel, the impropriety and potential harm of defendant’s conduct, by its *227very nature, is so clear that expert testimony is not required to establish the malpractice (see, Hammer v Rosen, 7 NY2d 376, 380). Certainly, no contrary evidence was submitted by defendant on the motion.
Since proof of acts of defendant constituting malpractice were submitted on plaintiffs motion, which he was precluded from contesting again as a result of the prior administrative determination, I would affirm Supreme Court’s granting of partial summary judgment on the issue of liability.
Weiss and Harvey, JJ., concur with Casey, J. P.; Mikoll, J., concurs in a separate opinion; Levine, J., dissents and votes to affirm in a separate opinion.
Order modified, on the law, with costs to defendant, by reversing so much thereof as granted plaintiffs motion for partial summary judgment; said motion denied; and, as so modified, affirmed.