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Defendant’s Guilty Plea Does Not Preclude Defense In Civil Action
By: Drew W. Schirmer, Esq.

FOR THE DEFENSE

Defendant’s Guilty Plea Does Not Preclude Defense In Civil Action

By: Drew W. Schirmer, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


In the recently reported case of Savocchi v. Theodoropoulos, Nassau County Supreme Court Justice Ute Wolfe Lally denied plaintiff’ motion for summary judgment based upon the defendant’ prior allocution in a related criminal proceeding. It should be noted that this decision was the subject of an article which appeared on the front page of the New York Law Journal on July 3, 2006.
I represented the defendant in this action.

The plaintiff alleged that he was injured as a result of an incident which occurred during a league soccer game between the plaintiff, Frank Savocchi, and the defendant, Dimitrios Theodoropoulos, who was member of the opposing team. Mr. Savocchi claimed that Mr. Theodoropoulos head-butted him during a confrontation resulting in a nasal fracture which required two surgeries. As a result of the incident, Mr. Savocchi filed criminal charges against Mr. Theodoropoulos, who was initially charged with the crime of Assault in the Third Degree (Penal Law §120.00), which is a class A misdemeanor. Subsequently, the defendant plead guilty to the reduced charge of Harassment in the Second Degree (Penal Law §240.26(1)), which as a violation is not a crime. Subsection (1) of §240.26 states that a person is guilty of this charge if “He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do same...”.

Mr. Theodoropoulos, during the course of his allocution was asked by the presiding Nassau County District Court Judge whether he admitted that he “acted in a harassing manner causing annoyance and alarm to the complainant, Frank Savocchi...”, to which he responded “yes.”

The crux of plaintiff’s argument in the summary judgment motion was that by defendant entering a guilty plea to the violation (a non-criminal charge), the disposition of the criminal proceeding collaterally estopped him from contesting the issue of liability in the subsequent civil proceeding. In support of this motion, plaintiff attached the pleadings, EBT transcripts and the transcript of the plea allocution.

In opposition, I argued that plaintiff’ “Affidavit of Merit” stated in conclusory fashion that the defendant head-butted his nose without provocation and that the conflicting EBT testimony by the parties concerning the incident raised a genuine triable issue of fact as to liability. In addition, I argued that defendant’s plea of guilty to a violation (Harassment in the Second Degree), did not preclude him from contesting liability in this civil action. The basis for this argument was twofold. First, I argued that the allocution itself failed to establish the elements of plaintiff’s prima facie case. Specifically, the allocution failed to establish that the defendant admitted that he either intentionally or negligently made contact with the plaintiff’s body. Second, I argued that controlling case law supported our position that a guilty plea to a violation does not collaterally estop a defendant from contesting the issue of liability in a subsequent civil case.

The Court of Appeals, in Gilberg v. Barbieri, reversed the Order of the Appellate Division and denied plaintiff’s motion for summary judgment where the defendant was convicted of harassment, a petty offense, after trial. [53 N.Y.2d 285, 423 N.E.2d 807, 441 N.Y.S.2d 49 (1981)]. In Gilberg, the defendant was found guilty of harassment in a prior criminal proceeding, of using physical force against the plaintiff, but the Court held that the prior conviction for the petty offense of harassment did not collaterally estop the defendant from later disputing the merits of the civil suit because of the relative insignificance of that charge, and the defendant could not reasonably be expected to defend that charge with the same vigor as if it was a true criminal prosecution and there was more at stake. Supra, at 292-294. The Court of Appeals further stated that the defendant “was not afforded the same opportunity to litigate his liability in the City Court as he would in the Supreme Court. Thus it is not unfair to permit him one opportunity to fully defend the civil complaint on the merits in a manner consistent with the potential magnitude of this suit.” Supra, at 294.

Justice Lally, citing the Gilberg decision, concluded that Mr.Theodoropoulos was not precluded from contesting the issue of liability despite his guilty plea in the prior criminal proceeding. Justice Lally also concluded that the plaintiff was not entitled to judgment as a matter of law based upon the parties’ conflicting testimony as to the underlying facts.

It should be noted that plaintiff filed a Notice of Appeal and has perfected his appeal. My office is in the process of filing a respondent’s brief. I trust that the Second Department will be guided by the Court of Appeals decision in Gilberg as well.

Editors Note: Drew W. Schirmer is a graduate of Jacob D. Fuchsberg School of Law, Touro College and a partner at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

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