Opinion
December 20, 1989
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Dillon, P.J., Callahan, Denman, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court did not err in granting plaintiff's motion for summary judgment on the issue of liability. The court properly invoked the doctrine of collateral estoppel to preclude defendant from relitigating the issue of his own liability based upon his prior criminal conviction. A criminal conviction may be conclusive proof of the underlying facts in the civil action (see, S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300, rearg denied 33 N.Y.2d 658; Chism v New York City Tr. Auth., 145 A.D.2d 400, 402; Bergen v Shapiro, 129 A.D.2d 669; Securities Settlement Corp. v Johnpoll, 128 A.D.2d 429, lv dismissed 70 N.Y.2d 693). Here plaintiff demonstrated the "identity of issue", one of the prerequisites for the invocation of the doctrine of collateral estoppel (see, Schwartz v Public Adm'r of County of Bronx, 24 N.Y.2d 65, 71; see also, Kaufman v Lilly Co., 65 N.Y.2d 449, 456). Defendant acknowledged that he had a full and fair opportunity to litigate the issue of his own liability in his criminal trial.
The inquiry, however, does not end here. We further conclude that, on this record, plaintiff established his lack of culpability as a matter of law. In support of his summary judgment motion, plaintiff submitted evidentiary proof in admissible form that he was the innocent victim of defendant's unprovoked and unwarned assault. In opposition to plaintiff's motion, defendant tendered excerpts of testimony at the criminal trial and his attorney's affidavit. The attorney's affidavit contained assertions not based on his personal knowledge. Such affidavit cannot "`supply the evidentiary showing necessary to successfully resist the motion'" (GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965, 968, quoting Roche v Hearst Corp., 53 N.Y.2d 767, 769). Moreover, the criminal trial testimony proffered by defendant clearly established that plaintiff was free from comparative fault. Defendant, therefore, failed to tender evidentiary proof in admissible form to show the existence of a triable issue of fact regarding plaintiff's culpable conduct (see, Zuckerman v City of New York, 49 N.Y.2d 557).