Doe v. Esposito , 114 A.D.2d 992 ( 1985 )

—In an action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Westchester County (Jiudice, J.), entered April 26, 1985, which denied plaintiff’s motion for summary judgment.

Order reversed, on the law, with costs, plaintiff’s motion is granted to the extent that she is awarded summary judgment as to liability for the recovery of damages for assault and intentional infliction of emotional distress; upon searching the record, her cause of action sounding in negligence in dismissed, and matter remitted to the Supreme Court, Westchester County, for an assessment of damages.

Inasmuch as defendant, in prior proceedings, acknowledged under oath that he did, in fact, rape his daughter, he is precluded from relitigating the identical facts underlying this civil complaint (see, S. T Grand, Inc. v City of New York, 32 NY2d 300; Read v Sacco, 49 AD2d 471). Since the complaint is based on intentional and willful conduct, the cause of action sounding in negligence is dismissed. The only remaining issue is the amount of damages sustained by plaintiff as a result of defendant’s conduct. Mollen, P. J., Gibbons, Brown, Niehoff and Eiber, JJ., concur.