Stevenson v. Goomar , 148 A.D.2d 217 ( 1989 )

OPINION OF THE COURT

Casey, J. P.

In this tort action, plaintiff seeks to recover damages from defendant, a physician, for injuries allegedly sustained as a result of assault and battery, false imprisonment and medical malpractice. All three causes of action are based upon allegations that defendant sexually assaulted plaintiff during a visit to his office as a patient. In addition to this action, plaintiff filed a criminal complaint and a complaint with the State Board for Professional Medical Conduct. No criminal charges against defendant resulted from the criminal complaint, but based upon plaintiffs testimony at a hearing held pursuant to Public Health Law § 230, defendant was found guilty of professional misconduct and his license to practice medicine was revoked.¹ The determination was confirmed by this court (Matter of Goomar v Arnbach, 136 AD2d 774, appeal dismissed 72 NY2d 908, lv denied 73 NY2d 701).

Seeking to invoke the doctrine of collateral estoppel based upon this administrative determination, plaintiff moved for partial summary judgment on the issue of liability on her medical malpractice cause of action. Concluding that there was a sufficient identicality of the issues and that defendant had been accorded a full and fair opportunity to contest those issues, Supreme Court held that defendant was barred from relitigating the issues decided in the administrative determination. Accordingly, plaintiff was granted summary judgment on the issue of liability on her medical malpractice cause of action.

We agree 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 (see, Ryan v New York Tel. Co., 62 NY2d 494). In particular, it appears that the "operative facts” were established by the determination (see, Matter of Engel v Calgon Corp., 114 AD2d 108, affd 69 NY2d 753), and defendant actively sought to defend his medical license during the course of the administrative proceedings. Nevertheless, we are of the view that this is not an appropriate case for invocation of the doctrine of collateral estoppel.

Although the Court of Appeals has prescribed certain general principles applicable in determining whether to invoke the doctrine of collateral estoppel in cases involving administrative determinations, the court has:

"consistently emphasized that these principles are not to be mechanically applied as a mere checklist. * * *

"In the end, the fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings” (Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153).

In the absence of any preclusive effect of the administrative determination at issue herein, defendant would have the right to demand a jury trial of the factual issues raised by the allegations contained in plaintiff’s malpractice cause of action (NY Const, art I, § 2). In its decisions concerning the preclusive effect of administrative determinations in subsequent civil actions, the Court of Appeals has not addressed the competing policy considerations involved where a party seeks to invoke his right to a jury trial in the subsequent civil action.² The court did, however, make reference to a civil litigant’s right to a jury trial in Gilberg v Barbieri (53 NY2d 285, 293), as a factor in its decision not to give preclusive effect to a prior City Court harassment conviction. In Samhammer v Home Mut. Ins. Co. (120 AD2d 59, 63-64, n 3), this court recognized the significance of a civil litigant’s right to a jury trial in a case similar to the one at bar, but we declined to address the issue since it had not been raised. Defendant herein has affirmatively and vigorously raised the issue and it must, therefore, be addressed.

An argument can be made that a civil litigant’s right to a jury trial is of little significance in the area of collateral estoppel since preclusive effect has been given to the results of prior litigation before a court without a jury (see, Gilberg v Barbieri, supra, at 303-304 [Meyer, J., dissenting]). There are, however, substantial differences between a nonjury trial and an administrative proceeding under Public Health Law § 230 (10), which, in our view, make such an argument inapplicable to this case. A party to a nonjury trial would still have the right to the broad disclosure guaranteed by CPLR article 31 and the right to a verdict based on legally admissible evidence. In the administrative hearing herein, however, defendant was accorded certain basic procedural safeguards such as the right to present evidence and cross-examine witnesses, but there was no disclosure other than notice of the charges, and the rules of evidence were inapplicable (see, Public Health Law § 230 [10]). Of equal significance is the scope of review available in the two settings. On appeal from a nonjury trial, the Appellate Division has the broad power to review the facts and grant the judgment which upon the evidence should have been granted by the trial court (see, CPLR 5501; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723; see also, Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492). The Appellate Division’s scope of review of an administrative agency’s quasi-judicial determination is, in contrast, very limited (see, CPLR 7803; Matter of Pell v Board of Educ., 34 NY2d 222). As this court said in reviewing the administrative determination at issue herein, "[t]he reviewing court must defer to the administrative agency’s resolution of those conflicts and differences [in the complaining witnesses’ testimony] unless there is no rational basis for the decision” (Matter of Goomar v Ambach, 136 AD2d 774, 777, supra).

In addition to the foregoing factors, it is also significant that defendant did not choose to litigate the matter at the administrative level (see, Ryan v New York Tel. Co., 62 NY2d 494, 501, supra). As in Gilberg v Barbieri (53 NY2d 285, 293, supra), it was plaintiff who had the initiative, filing the complaint which led to the investigation and the charges of misconduct. Defendant’s participation was prompted solely by his need to protect and defend his license to practice medicine. A ruling in favor of plaintiff herein would effectively make the administrative agency in a disciplinary proceeding the ultimate fact finder, with only limited judicial review, in any tort action arising out of the alleged misconduct, thereby depriving a defendant of a number of valuable rights traditionally associated with civil actions, including the constitutional right to a trial by jury. Plaintiff’s use of collateral estoppel offensively to establish liability in the circumstances presented by this case would not comport with the underlying fundamental fairness aspects of the doctrine (see, Matter of Halyalkar v Board of Regents, 72 NY2d 261, 269-270; Restatement [Second] of Judgments § 29, comment d [1982]).

We conclude, therefore, that where, as here, a party to a civil action seeks to invoke his right to a jury trial and he has not initiated or otherwise affirmatively sought to litigate the matter at the administrative level, fundamental fairness and the policy considerations referred to by the Court of Appeals in Staatsburg Water Co. v Staatsburg Fire Dist. (72 NY2d 147, 153, supra) and Gilberg v Barbieri (53 NY2d 285, 292-294, supra) require that preclusive effect not be given to the administrative determination. To conclude otherwise would result in the substantial erosion of rights far more fundamental and important than the concepts of finality and judicial economy served by the doctrine of collateral estoppel. Accordingly, plaintiff’s motion should be denied.

1 . Due to the publicity generated by plaintiff’s criminal complaint, three other former patients filed complaints against defendant with the State Board for Professional Medical Conduct and testified at the hearing.

2 . It appears that the issue has not been raised at the Court of Appeals level. In Ryan v New York Tel. Co. (62 NY2d 494), for example, the party precluded from relitigating the factual issues decided by the prior administrative determination had affirmatively sought the administrative ruling (see also, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, cert denied — US —, 109 S Ct 785 [where both parties to the civil action had requested the prior administrative hearing]).