## Facts

- David C. Gilberg, an attorney, represented Joseph P. Barbieri’s former wife in matrimonial matters.
- Gilberg scheduled Barbieri for an examination before trial concerning an alleged breach of a separation agreement.
- Barbieri appeared without counsel and repeatedly refused to answer questions until he retained a lawyer; Gilberg adjourned the examination and ordered him to leave.
- Barbieri came around Gilberg’s desk and a physical altercation occurred; the men were separated by Gilberg’s sons, and each threw the other’s glasses.
- Gilberg filed an information charging Barbieri with harassment under Penal Law § 240.25(1), a non-criminal “violation” involving intentional physical contact (or threats/attempts).
- After a brief nonjury trial in Mount Vernon City Court, Barbieri was convicted and sentenced to a one-year conditional discharge, including a condition to avoid encounters with Gilberg’s law firm.
- The next day, Gilberg sued Barbieri in Supreme Court for civil assault, seeking $250,000 in damages.
- Gilberg obtained partial summary judgment on liability on the theory that the harassment conviction collaterally estopped Barbieri from disputing civil assault liability; the Appellate Division affirmed, and Barbieri appealed.

## Issues

1. Whether a prior conviction for harassment classified as a “violation” may collaterally estop a defendant from contesting liability in a subsequent civil assault action arising from the same incident and seeking substantial damages.
2. Whether the defendant had a “full and fair opportunity to litigate” the relevant issues in the prior city court violation proceeding sufficient to justify issue preclusion in the later civil action.

## Decision

- The New York Court of Appeals reversed the Appellate Division order that had upheld summary judgment for Gilberg on liability.
- The court held collateral estoppel inapplicable because the prior harassment conviction, obtained in a minor-offense proceeding, did not provide a sufficient full and fair opportunity to litigate for purposes of binding the defendant in a high-stakes civil action.
- The court answered the certified question (concerning the correctness of the Appellate Division order) in the negative.

## Legal Principles

- Collateral estoppel applies only when (1) the identical issue was necessarily decided in the prior proceeding and (2) the party to be bound had a full and fair opportunity to litigate that issue.
- The “full and fair opportunity” inquiry is practical and includes whether the prior proceeding’s stakes gave the party adequate incentive to litigate vigorously.
- A conviction for a minor offense designated a “violation,” especially where the proceeding is brief and the potential punishment is limited, may be insufficient to justify issue preclusion in a later civil action seeking substantial monetary damages.
- Large disparity between the minimal consequences of a prior violation proceeding and the exposure in a subsequent civil damages action weighs against applying collateral estoppel.

## Conclusion

The court held that Barbieri’s harassment violation conviction could not be used to preclude him from disputing liability in Gilberg’s later civil assault action because the prior minor-offense proceeding did not, in context, afford a full and fair opportunity and incentive to litigate issues with consequences comparable to a substantial damages lawsuit.


Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 423 N.E.2d 807 (N.Y. 1981)