132 Misc. 2d 171 | N.Y. Sur. Ct. | 1986
OPINION OF THE COURT
In this discovery proceeding, the petitioner executor seeks to compel the Continental Insurance Company (carrier) to pay the proceeds of a life insurance policy on decedent’s life to the estate instead of to the named beneficiary decedent’s husband, Kurtis Brown. Brown has been convicted of second degree murder in connection with the death of the decedent. New
The petitioner maintains that a criminal conviction is conclusive proof of its underlying facts and is the proper subject of a collateral estoppel in any subsequent civil litigation. (S. T. Grand, Inc. v City of New York, 32 NY2d 300.) Thus, it is reasoned that the surviving spouse’s criminal conviction of intentional murder conclusively proves the elements of the intentional killing necessary for forfeiture of his rights under the policy. He is therefore collaterally estopped from relitigating those issues in a subsequent civil action.
The Legal Aid Society through attorney James R Boyle advances the view on behalf of the convicted husband, that the guidelines for the establishment of a collateral estoppel to prevent Mr. Brown from obtaining the proceeds of the insurance are not applicable here. (Schwartz v Public Administrator, 24 NY2d 65.) Cited by both sides is Duverney v State of New York (96 Misc 2d 898). Curiously enough language in Duverney does indeed support both arguments. Of particular interest to this court, however, is the following language in Duverney (supra, at pp 910, 911) "consideration of the existence of an appeal * * * [was] one of the factors [to be] considered * * * under the full and fair opportunity [aspect of the] doctrine” — referring to the full and fair opportunity doctrine as enunciated in Schwartz v Public Administrator (supra, at p 71).
The court finds equally cogent the language in Read v Sacco (49 AD2d 471, 474), wherein the court said "collateral estoppel should not be blindly applied to multiple litigation on the basis of a rigid rule; each case must be examined to determine whether under all the circumstances, the party said to be estopped was not unfairly or prejudicially treated in the litigation in which the judgment sought to be enforced was rendered.” While strict construction would hold that the