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

630
CA 14-01784
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


ROBERT M.D. AND KATHERINE A.D., INDIVIDUALLY,
AND AS PARENTS AND NATURAL GUARDIANS OF
BRANDON S.D., PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

FRANK W. STERLING, DEFENDANT-APPELLANT.


LOSI GANGI, BUFFALO (PATRICK J. BROWN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FITZSIMMONS, NUNN & PLUKAS, LLP, ROCHESTER (JASON E. ABBOTT OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered July 29, 2014. The order, insofar as
appealed from, granted that part of the motion of plaintiffs seeking
partial summary judgment on the issue of liability on their civil
battery cause of action.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motion is denied
in its entirety.

     Memorandum: Plaintiffs, individually and on behalf of their
child, commenced this action for, among other things, civil battery,
seeking damages for injuries sustained when defendant allegedly
intentionally touched their child in an offensive manner. In an
earlier criminal action, defendant acknowledged that he had touched
the child’s buttocks and pleaded guilty to endangering the welfare of
a child (Penal Law § 260.10 [1]). Plaintiffs moved for partial
summary judgment on liability, alleging with respect to the cause of
action for civil battery that, because defendant had pleaded guilty to
“sexually abusing” the child in the earlier criminal proceeding, there
was no question of fact to be determined with respect to defendant’s
liability for civil battery. We agree with defendant that Supreme
Court erred in granting the motion to that extent, and that the motion
should have been denied in its entirety.

     We agree with defendant that the identity of issues required for
the application of collateral estoppel is lacking. “A criminal
conviction may be given collateral estoppel effect in a subsequent
civil litigation if there is an identity of issues and a full and fair
opportunity to litigate in the [criminal] action” (Hooks v
                                 -2-                           630
                                                         CA 14-01784

Middlebrooks, 99 AD2d 663, 663; see Buechel v Bain, 97 NY2d 295,
303-304, cert denied 535 US 1096). “To recover damages for battery
founded on bodily contact, a plaintiff must prove that there was
bodily contact, that the contact was offensive, and that the defendant
intended to make the contact without the plaintiff’s consent” (Roe v
Barad, 230 AD2d 839, 840, lv dismissed 89 NY2d 938). Here, we
conclude that bodily contact is the only element of civil battery
established by defendant’s plea in the criminal action and, thus,
plaintiffs failed to establish the requisite “identity of issues”
between the crime of endangering the welfare of a child and civil
battery (see Hooks, 99 AD2d at 663; see generally Roe, 230 AD2d at
840).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
