On admissions

Napoli v Breaking Media, Inc., 2020 NY Slip Op 05907 [2d Dept. 2020]

“The doctrine of collateral estoppel, a narrower species of res judicata, 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 are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). The doctrine precludes a party from relitigating an issue which has previously been decided against that party in a proceeding in which that party had a fair opportunity to fully litigate the point” (see Matter of Dunn, 24 NY3d 699, 704).

Here, the plaintiff’s allegation in her complaint in this action that the articles published by the defendants were republications of the Post articles is a judicial admission which is conclusive of the fact asserted (see Re/Max of N.Y., Inc. v Weber, 177 AD3d 910, 914; Zegarowicz v Ripatti, 77 AD3d 650, 653). Accordingly, since the complaint alleges that the defendants committed defamation by making substantially the same statements that were made in the Post articles, the defendants established that the complaint is barred by the doctrine of collateral estoppel (see CPLR 3211[a][5]; Karakash v Trakas, 163 AD3d 788, 789-790; Constantine v Teachers Coll., 93 AD3d 493, 494).

Pina v Arthur Clinton Hous. Dev. Fund Corp., 2020 NY Slip Op 06968 [1st Dept. 2020]

The court properly considered some of the medical records submitted in opposition to plaintiff’s summary judgment motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff’s medical records were not germane to his treatment and diagnosis, the entries in at least three of the medical records were directly attributable to plaintiff so as to constitute admissions (see Robles v Polytemp, Inc., 127 AD3d 1052, 1054 [2d Dept 2015]; Marquez at 423; cf. Benavides v City of New York, 115 AD3d 518, 519-520 [1st Dept 2014]). Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff’s motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident (Marquez at 423).

Rosales v Rivera, 176 AD3d 753 [2d Dept. 2020]

Nevertheless, the Espinals were entitled to summary judgment dismissing the complaint insofar as asserted against them, as the plaintiff made an informal judicial admission that the Espinals were not at fault in the happening of the accident. The plaintiff argued in prior motion practice that Rivera’s and Beltre’s failures to safely bring their vehicles to a stop was the sole proximate cause of the plaintiff’s injuries (see Russell v Gaines, 209 AD2d 939, 940 [1994]; Matter of Home of Histadruth Ivrith v State of N.Y. Facilities Dev. Corp., 114 AD2d 200, 204 [1986]; Pok Rye Kim v Mars Cup Co., 102 AD2d 812, 812 [1984]; see also Michigan Natl. Bank-Oakland v American Centennial Ins. Co., 89 NY2d 94, 103 [1996]). “Admissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity” (Bellino v Bellino Constr. Co., 75 AD2d 630, 630 [1980]; see Matter of Home of Histadruth Ivrith v State of N.Y. Facilities Dev. Corp., 114 AD2d at 204). An informal judicial admission is evidence of the fact or facts admitted (see Michigan Natl. Bank-Oakland v American Centennial Ins. Co., 89 NY2d at 103). In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the Espinals’ conduct proximately caused his injuries.

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