Opinion
Argued June 1, 2000.
July 3, 2000.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered July 6, 1999, as denied their cross motion for summary judgment on the issue of liability as against the defendant Edmund Spivak, and (2) an order of the same court entered October 6, 1999, which denied their motion, in effect, for reargument.
Bodner Waldinger, P.C., New York, N.Y. (Juli J. Kempner and Jesse Waldinger of counsel), for appellants.
Sullivan Papain Block McGrath Cannavo, P.C., New York, N Y (Robert G. Sullivan and Stephen C. Glasser of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the appeal from the order entered October 6, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order entered July 6, 1999, is reversed insofar as appealed from, on the law, and the cross motion is granted; and it is further,
ORDERED that the plaintiffs are awarded one bill of costs.
Having pleaded guilty to assault in the third degree in an earlier criminal action stemming from the same incident, the respondent, Edmund Spivak, is precluded from litigating the issue of liability in this action alleging that he committed assault and battery against the plaintiff George DeSantis (see, Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495).
With regard to the respondent's affirmative defense concerning the culpable conduct of the plaintiff George DeSantis, the relative degree of culpability between those parties should be resolved at a trial on the issue of damages (see, Pirodsky v. Pirodsky, 179 A.D.2d 1066).