        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1300
CA 13-00908
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


STEVEN C. RIDGE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ALICE GOLD, ET AL., DEFENDANTS,
AND JAY BRAYMILLER, DEFENDANT-APPELLANT.


SUGARMAN LAW FIRM, LLP, BUFFALO (CARLTON K. BROWNELL, III, OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AARON GLAZER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered November 16, 2012. The order, insofar as
appealed from, denied the motion of defendant Jay Braymiller for
summary judgment dismissing plaintiff’s complaint.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the motion of defendant Jay
Braymiller for summary judgment is granted, and the complaint against
him is dismissed.

     Memorandum: Plaintiff was allegedly injured when he fell from a
ladder while working on an addition to a home owned by defendants
Alice Gold and Susan Griesman. In a proceeding before the Workers’
Compensation Board (Board), the Board concluded that plaintiff lacked
credibility and that no accident had occurred as alleged by plaintiff.
Plaintiff thereafter commenced this Labor Law and common-law
negligence action against the homeowners and Jay Braymiller
(defendant), the general contractor on the project. Defendant moved
for summary judgment dismissing the complaint against him on the
ground “that the action is barred by collateral estoppel.” We agree
with defendant that Supreme Court erred in denying his motion, and we
therefore reverse the order insofar as appealed from, grant
defendant’s motion, and dismiss the complaint against him.

     The doctrine of collateral estoppel “precludes a party from
relitigating in a subsequent action or proceeding an issue clearly
raised in a prior action or proceeding and decided against that party
or those in privity, whether or not the tribunals or causes of action
are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). Thus,
“[t]he quasi-judicial determinations of administrative agencies are
entitled to collateral estoppel effect where the issue a party seeks
                                 -2-                          1300
                                                         CA 13-00908

to preclude in a subsequent civil action is identical to a material
issue that was necessarily decided by the administrative tribunal and
where there was a full and fair opportunity to litigate before that
tribunal” (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246,
255). “The party seeking the benefit of collateral estoppel has the
burden of demonstrating the identity of the issues in the present
litigation and the prior determination, whereas the party attempting
to defeat its application has the burden of establishing the absence
of a full and fair opportunity to litigate the issue in the prior
action” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456; see Ackman v
Haberer, 111 AD3d 1378, 1379).

     Here, defendant met his burden on his motion by establishing the
“identicality and decisiveness of the issue” decided in the workers’
compensation proceeding (Ryan, 62 NY2d at 501; see Matter of Kibler v
New York State Dept. of Corr. Servs., 91 AD3d 1218, 1221, lv denied 19
NY3d 803; Rigopolous v American Museum of Natural History, 297 AD2d
728, 729; see also Scipio v Wal-Mart Stores E., L.P., 100 AD3d 1452,
1453). In support of his motion, defendant submitted the form
entitled “C-7 Notice That Right To Compensation Is Controverted”
(hereafter, C-7 Notice) submitted to the Board by the workers’
compensation insurance carrier, which specifically lists “[c]ausally
[r]elated [a]ccident” as one of the grounds for controverting
plaintiff’s claim. The narrative portion of the C-7 Notice states
that the insurance carrier “raise[s] the issue of causal relationship
because we believe that . . . [plaintiff] has a prior work related
injury involving the neck and back.” Defendant also submitted copies
of the decisions of the Workers’ Compensation Law Judge and the Board,
which confirm that the issue whether a work-related accident had in
fact occurred was in controversy at the hearing on plaintiff’s
workers’ compensation claim.

     In opposition to defendant’s motion, plaintiff asserted that
there was no identity of issue because the sole purpose of the hearing
was to determine whether an employer-employee relationship existed.
Plaintiff, however, failed to attach excerpts of the hearing
transcript to support his contention that the scope of the hearing was
narrower than indicated on the C-7 Notice, even though it is clear
from the record that he had a copy of the transcript. There is
likewise no merit to plaintiff’s assertion that his credibility was
not “clearly raised” or otherwise placed in issue in the workers’
compensation proceeding. “In any judicial or quasi-judicial
inquiry[,] the credibility of any witness is always a most important
factor” (Matter of Fisher v One Oak Dairy, 274 App Div 274, 274; see
1515 Summer St. Corp. v Parikh, 13 AD3d 305, 307), and it is well
established that the Board “has broad authority to resolve factual
issues based on credibility of witnesses and [to] draw any reasonable
inference from the evidence in the record” (Matter of Marshall v Elf
Atochem N. Am., 285 AD2d 933, 934 [internal quotation marks omitted];
see Matter of Papadakis v Volmar Constr., Inc., 17 AD3d 874, 875).

     Although plaintiff claimed at oral argument of this appeal that
the phrase “[c]ausally [r]elated [a]ccident” on the C-7 Notice
referred to medical causation only and not to the issue whether an
                                  -3-                          1300
                                                          CA 13-00908

accident in fact occurred, he failed to raise that argument in his
appellate brief or before the trial court, and thus that argument is
not properly before us (see Pellescki v City of Rochester, 198 AD2d
762, 763, lv denied 83 NY2d 752). In any event, case law supports the
conclusion that the phrase “causally related accident” encompasses
both the happening of the accident and the causal relationship between
the accident and the claimed injuries (see Matter of Curley v Allstate
Ins. Co., 2 AD3d 995, 996; Matter of Wachtler v AT&T, 285 AD2d 767,
768; Marshall, 285 AD2d at 934-935). Indeed, whether an accident
actually occurred—when such occurrence is controverted—is a threshold
factual question in a workers’ compensation proceeding.

     Finally, plaintiff failed to establish that he did not have a
full and fair opportunity to litigate the issue whether an accident in
fact occurred in the prior proceeding (see Ryan, 62 NY2d at 501, 503-
504; Rigopolous, 297 AD2d at 729). Plaintiff, who was represented by
counsel, had notice of the issue prior to the hearing, testified at
the hearing, and had the opportunity to cross-examine the witnesses
against him (see Ryan, 62 NY2d at 503-504; Matter of Mordukhayev
[Commissioner of Labor], 104 AD3d 1005, 1006; Kibler, 91 AD3d at
1221).

     Inasmuch as the absence of an accident is dispositive of
plaintiff’s Labor Law and common-law negligence causes of action, we
conclude that defendant “eliminat[ed] all triable issues of fact from
the case,” and he is therefore entitled to summary judgment dismissing
the complaint against him (Rigopolous, 297 AD2d at 729; see Yoonessi v
State of New York, 289 AD2d 998, 1000, lv denied 98 NY2d 609, cert
denied 537 US 1047).

     All concur except SCONIERS and WHALEN, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent. In our
view, Supreme Court properly denied the motion of Jay Braymiller
(defendant) for summary judgment dismissing the complaint against him
inasmuch as defendant failed to meet his initial burden of
establishing that the doctrine of collateral estoppel bars plaintiff’s
action against him.

     There is no question that the doctrine of collateral estoppel
“gives preclusive effect” to the determination of a quasi-judicial
agency like the Workers’ Compensation Board (Board) as long as “two
basic conditions are met: (1) the issue sought to be precluded is
identical to a material issue necessarily decided by the
administrative agency in a prior proceeding; and (2) there was a full
and fair opportunity to contest th[at] issue in the administrative
tribunal” (Jeffreys v Griffin, 1 NY3d 34, 39; see Staatsburg Water Co.
v Staatsburgh Fire Dist., 72 NY2d 147, 153). Courts have discretion
in deciding whether to apply the doctrine of collateral estoppel (see
Calhoun v Ilion Cent. Sch. Dist. [appeal No. 2], 90 AD3d 1686, 1689;
Matter of Russo v Irwin, 49 AD3d 1039, 1041), and the decision whether
it is proper to do so “depends upon ‘general notions of fairness
involving a practical inquiry into the realities of the litigation’ ”
(Jeffreys, 1 NY3d at 41, quoting Matter of Halyalkar v Board of
                                 -4-                          1300
                                                         CA 13-00908

Regents of State of N.Y., 72 NY2d 261, 268). “The proponent of
collateral estoppel as the basis for the granting of summary judgment
has the burden of demonstrating” that both basic conditions are met
(S.D.I. Corp. v Fireman’s Fund Ins. Cos., 208 AD2d 706, 708). We
conclude that, here, defendant failed to meet his burden with respect
to the first condition, i.e., that he failed to demonstrate that the
issue whether an accident in fact occurred was clearly raised and
decided in a prior workers’ compensation proceeding (see Rigopolous v
American Museum of Natural History, 297 AD2d 728, 729; see generally
Jeffreys, 1 NY3d at 39). The record before us, which does not contain
any excerpts from the transcript of the hearing on plaintiff’s
workers’ compensation claim or the documentation relied upon by the
Workers’ Compensation Law Judge and the Board that decided that claim,
simply does not establish as a matter of law whether that issue was
“addressed and decided” in the proceeding (Madden v Pine Hill-Kingston
Bus. Corp., 288 AD2d 600, 601; Capitaland United Soccer Club v Capital
Dist. Sports & Entertainment, 238 AD2d 777, 780). Moreover, we note
that the Board found in its decision “that no accident occurred as
[plaintiff] has alleged, based on [his] lack of credibility” (emphasis
added), which is not equivalent to a finding that no accident occurred
at all. In sum, we conclude that “the inadequacy of the record . . .
precludes us from determining on the merits whether the doctrine of
collateral estoppel should be applied” (FTL Co. v Chase Manhattan
Bank, N. A., 78 AD2d 628, 628).

     We also conclude that there is an issue of fact with respect to
the second condition, i.e., whether plaintiff had a fair and full
opportunity to litigate the disputed issue before the Board (see
generally Jeffreys, 1 NY3d at 39). Indeed, the record establishes
that plaintiff did not receive sufficient notice that his employer was
challenging in the workers’ compensation proceeding whether a work-
related accident actually occurred (see Jenkins v Meredith Ave.
Assoc., 238 AD2d 477, 479). The form entitled “C-7 Notice That Right
To Compensation Is Controverted” (hereafter, C-7 Notice), which was
submitted by defendant in support of his motion, did not put plaintiff
on notice that his employer was challenging the issue whether an
accident in fact occurred. The C-7 Notice contains boxes that an
employer may check to indicate the issues being raised in the
proceeding. Here, plaintiff’s employer checked boxes titled
“Employer-Employee Relationship,” “Causally Related Accident or
Occupational Disease,” “Proper Carrier,” and “General or Special
Employment.” The remaining boxes—“Accident within meaning of Workers’
Compensation Law,” “Accident Arising Out Of and in the Course of
Employment,” and “Subject Matter Jurisdiction”—were left unchecked.
Although plaintiff’s employer raised an issue whether plaintiff’s
injuries were causally related to the alleged accident because of a
prior work-related injury that plaintiff had sustained, we note that
the issue of injury causation is different from the issue whether an
accident occurred at all. We also note that defendant failed to
include in his motion submissions a copy of the transcript of the
hearing, thereby preventing us from determining whether plaintiff was
put on notice that his employer was controverting the issue whether
the accident actually occurred. We therefore conclude that there is a
                                 -5-                          1300
                                                         CA 13-00908

question of fact whether plaintiff had a full and fair opportunity to
litigate that issue before the Board (see id.).




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
